Petition — County of Los Angeles v. Davis
Supreme Court brief1979
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INTHE |i
SUPREME COURT ~
OF THE UNITED STATES
October Term, 1977
No. .
771553
COUNTY OF LOS ANGELES: BOARD OF SUPERVISORS
OF THE COUNTY OF LOS ANGELES; and CIVIL SERVICE
COMMISSION OF THE COUNTY OF LOS ANGELES,
Petitioners.
VS.
VAN DAVIS, HERSHEL CLADY and FRED VEGA, individually
and on behalf of all others similarly situated, WILLIE C. BURSEY,
ELIJAH HARRIS, JAMES W. SMITH, WILLIAM CLADY,
STEPHEN HAYNES, JIMMIE ROY TUCKER, LEON AUBRY,
RONALD CRAWFORD, JAMES HEARD, ALFRED R. BALTAZAR,
OSBALDO A. AMPARAH, individually and on behalf of all
others similarly situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. LARSON
County Counse!
WILLIAM F. STEWART
Chief, Labor Relations Division
648 Hall of Administration
Los Angeles, California 90012
(213) 974-1829
Attorneys for Petitioners
IN ‘THE
SUPREME COURT
OF THE UNITED STATES
October Term, 1977
No.
COUNTY OF LOS ANGELES; BOARD OF SUPERVISORS
OF THE COUNTY OF LOS ANGELES; and CIVIL SERVICE
COMMISSION OF THE COUNTY OF LOS ANGELES,
Petitioners,
VS.
VAN DAVIS, HERSHEL CLADY and FRED VEGA, individually
and on behalf of all others similarly situated, WILLIE C. BURSEY,
ELIJAH HARRIS, JAMES W. SMITH, WILLIAM CLADY,
STEPHEN HAYNES, JIMMIE ROY TUCKER, LEON AUBRY,
RONALD CRAWFORD, JAMES HEARD, ALFRED R. BALTAZAR,
OSBALDO A. AMPARAH, individually and on behalf of all
others similarly situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN H. LARSON
County Counsel
WILLIAM F. STEWART
Chief, Labor Relations Division
648 Hall of Administration
Los Angeles, California 90012
(213) 974-1829
Attorneys for Petitioners
a
TOPICAL INDEX
Table of Authorities
OPINION AND JUDGMENT BELOW
JURISDICTION
QUESTIONS PRESENTED
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE
PETITION
Ill
CONSTITUTIONAL, NOT TITLE VII,
STANDARDS OF DISCRIMINATION
SHOULD GOVERN CLAIMS UNDER
42 U.S.C. SEC. 1981; PURPOSEFUL
DISCRIMINATION IS THE CORRECT
CRITERION FOR ADJUDING A
VIOLATION OF SEC. 1981.
THE DECISION IS CONTRARY TO THE
SUPREME COURT'S RULING ON THE
INTENT STANDARD FOR CONSTITU-
TIONAL DISCRIMINATION IN
WASHINGTON V. DAVIS AND ITS
DECISION ON STANDING IN EAST
TEXAS FREIGHT CO. V. RODRIGUEZ
THE OPINION OF THE NINTH CIRCUIT
IS INCONFLICT WITH OTHER CIRCUIT
COURT OPINIONS.
10
1]
IV THE AFFIRMED QUOTA HIRING ORDER
CLEARLY EXCEEDS THE COURT'S
REMEDIAL AUTHORITY. 20
CONCLUSION
~~
TABLE OF AUTHORITIES
Cases Page
Arnold v. Ballard,
12 EPD par. 11, 224 (1976) 18
City of Milwaukee v. Saxbe,
546 F.2d 693 (1976) 19
Chicano Police Officers Association v. Stover,
426 U.S. 944 (1976) 16, 17, 18
Crocker v. Boeing Co.,
437 F.Supp. 1138 (1977) 18
East Texas Motor Freight v. Rodriguez,
431 U.S. 395, 14 FEP Cases 1505 (1977) 16
Franks v. Bowman,
424 U.S. 747 (1976) 22, 23
Griggs v. Duke Power,
401 U.S. 424 (1971) 14, 15
Harkless v. Sweeny Independent Schoo! District,
____ F.2d ___, 14 EPD, par. 7669,
§295 (1977) 20
Hazelwood School District v. United States,
___—-ULS. ___, 97 Sup.Ct. 2736,
15 FEP Cases | (1977) 21, 22
International Brotherhood of Teamsters v.
United States,
431 U.S. 324, 14 FEP Cases 1514
(1977) 12, 21, 11, 12
Johnson v. Alexander,
__ F.2d __, 16 FEP Cases 894
(8th Cir., February 17, 1978) 19
iii.
Johnson v. Goodyear Tire & Rubber Co.,
491 F.2d 1364 (5 Cir. 1974) 23
Johnson v. Ry Express Agency, Inc.,
421 U.S. 454 (1975) 13
Jones v. City of San Antonio,
568 F.2d 1224 (5 Cir., 1978) 12
Lewis v. Bethlehem Steel Corp..,
440 F.Supp. 949 (1977) 18
Mills v. Small,
446 Fed.2d 249 (1971) 22
United Air Lines v. Evans,
431 U.S. 553 (1977) 12, 22
United States v. Chicago,
549 F.2d 415 (1977) 19
United States v. State of So. Carolina,
__ F.Supp. ___, 15 FEP Cases 1196
(1977) 18
Van Davis, et al. v. County of Los Angeles, et al.,
566 F.2d 1334 (9th Cir. 1977) 2, 8, 11
Veizaga v. National Board of Respiratory Therapy,
13 EPD par. 11, 525 (N.D. Ill,,
January 27, 1977) 18
Wade v. Mississippi Cooperative Extension Service,
§28 F.2d 508 (1976) 20
Washington v. Davis,
426 U.S. 229 (1976) 7,8, 10, 11, 12
13, 14, 16, 17, 18, 19
Constitution
United States Constitution:
Constitution
United States Constitution:
Fifth Amendment 3, 19
Thirteenth Amendment 13
Fourteenth Amendment 3, 10, 19
Statutes
Rule 19(1 )(b) :
28 U.S.C.:
Section 1254(1) 2
Section 1343 2
42 U.S.C:
Section 1981 b> Fe % By 7
8, 10, 11, 12, 13
14, 14, 16,17
Section 1982 7
42 U.S.C.:
Section 1983 5, 7,10, 12
13, 14, 16, 17, 18, 19
Sections 2000e, et seq 4
Section 2000e-16 5
Miscellaneous
Army Reg. 40-501, par. 2-34(a) 19
INDEX TO APPENDICES
Appeadix A
Opinion on Rehearing of the United States
Court of Appeals for the Ninth Circuit
in “Van Davis, et al. v. County of Los Angeles,
etal.” Reported in 566 F.2d 1334 (Dec. 14,
1977), rehearing denied Jan. 30, 1978
Wallace, J., Dissenting
APPENDIX B
Opinion of the United States Court of Appeals
for the Ninth Circuit in “Van Davis, et al
v. County of Los Angeles, et al.”
(Unreported )
Wallace, J., Dissenting
APPENDIX C
Judgment of the United States District
Court, Central District of California, in
“Van Davis, et al. v. County of Los Angeles,
et al.”
APPENDIX D
Findings of Fact and Conclusions of Law of
the United States District Couri, Central
District of California, in ‘“‘Van Davis, et al
v. County of Los Angeles, et al.”
IN THE
SUPREME COURT
OF THE UNITED STATES
October Term, 1977
No.
COUNTY OF LOS ANGELES; BOARD OF SUPERVISORS
OF THE COUNTY OF LOS ANGELES; and CIVIL SERVICE
COMMISSION OF THE COUNTY OF LOS ANGELES,
Petitioners,
VS.
VAN DAVIS, HERSHAL CLADY and FRED VEGA, individually
and on behalf of all others similarly situated, WILLIE C. BURSEY,
ELIJAH HARRIS, JAMES W. SMITH, WILLIAM CLADY,
STEPHEN HAYNES, JIMMIE ROY TUCKER, LEON AUBRY,
RONALD CRAWFORD, JAMES HEARD, ALFRED R. BALTAZAR,
OSBALDO A. AMPARAH, individually and on behalf of all
others similarly situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioners pray that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the
Ninth Circuit entered on this proceeding on December 14, 1977.
OPINION AND JUDGMENT BELOW
The opinion of rehearing (including dissent) of the
United States Circuit Court of Appeals for the Ninth Circuit is
printed as Appendix A, p. 1, and is reported in Van Davis,
et al. v. County of Los Angeles, et al., 566 F.2d 1334 (9th Cir.
1977). The unreported original opinion of the circuit court
is printed as Appendix B. The judgment and findings of the
district court are printed as Appendices C, and D, respectively.
JURISDICTION
The opinion and judgment were entered on
December 14, 1977. A timely petition for rehearing was filed
by the respondents, Van Davis, et al. (plaintiffs-appellants below),
and was denied on January 30, 1978.
Jurisdiction of the District Court was based on
28 U.S.C. Sec. 1343.
This Court’s jurisdiction is invoked under 28 U.S.C.
Sec. 1254(1), and Rule 19(1 )(b).
QUESTIONS PRESENTED
1. Is proof of purposeful racial discriminatory
intent required to establish a cause of action for employment
discrimination under 42 U.S.C. Sec. 1981 or can an employer
be held liable for pre-Title VII employment practices under
Sec. 1981, merely by a showing of disproportionate impact.
2. Isa racial quota hiring order to be effective
until the entire fire department achieves current racia! parity
with the general population beyond the jurisdiction of the court
W :
hen >
OO EO
a. The District Court expressly found no
discriminatory intent was present;
b. The quota hiring order attempts to remedy
hiring practices occurring prior to the effective date of Title VII
and time barred by the applicable 3-year Statute of Limitations
a
on Sec. 1981 actions;
c. The plaintiffs had no standing to represent
any pre-March 24, 1972 applicants and no discriminatory hiring
has occurred subsequent to Title VII's effective date.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
1. The Sth and 14th Amendments to the United
States Constitution; in particular, the due process and equal
protection clauses thereof;
2. The following provisions of the United States
Code:
42 U.S.C. Sec. 1981. Equal rights under the law:
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
3.
punishment, pains, penalties, taxes,
licenses, and extractions of every kind, and to
no other.
42 U.S.C. Sec. 2000e, et seq. (Title VII of the
Civil Rights Act of 1964 as amended in 1972).
STATEMENT OF THE CASE
In this proceeding, the County of Los Angeles was
found liable for employment discrimination under 42 U.S.C.
Sec. 1981 and Title VII and ordered to engage in quota hiring
of blacks and Mexican-Americans until the entire fire depart-
ment of 1760 firefighters achieved racial parity with the County’s
general population, despite the existence of the following facts:
1. No discriminatory hiring occurred after the
effective date of Title VII;
2. The trial court found that the County had
not engaged in purposeful discrimination and, to
the contrary, found that the County had engaged
in efforts designed to increase minority representa-
tion in the fire department;
3. None of the plaintiffs had been applicants
for any firefighter position prior to 1972, and the
Ninth Circuit held that the plaintiffs lacked standing
to challenge the County’s use of qualification tests
given at any time prior to 1972;
4.
—
4. All plaintiff applicants taking the 1972 written
exam passed, and all hiring from the resulting
eligibility list was conceded by plaintiffs prior to
trial to be accomplished in a non-discriminatory
manner.
The plaintiffs in their complaint filed on January 11,
1973 challenged two written employment tests of the County
of Los Angeles - one given in 1969 and the other in 1972.
While also claiming the 5°7” minimum height standard was
discriminatory, they expressly declined to seek an injunction
against its use in both the district and circuit courts. None
of the plaintiffs was disqualified by the minimum height
standard. In an amended complaint the plaintiffs conceded
that the hiring as a result of the 1972 test was not discriminatory.
Ultimately the Ninth Circuit in the decision sought to be reviewed
by this petition held that the plaintiffs had no standing to chal-
lenge the 1969 written tests or any hiring practices occurring
before 1972. The following summarizes the proceedings in
the case.
In July, 1973, the trial court found that petitioner
County of Los Angeles had violated 42 U.S.C. Secs. 1981,
1983, and Sec. 2000e-16 (Title VII) by administering a written
employment qualification test for entry-level firefighter in
1969, and January, 1972, which had an adverse effect on blacks
and Mexican-Americans and was not shown to be job-related.
_ The District Court upheld the departments 5°7” minimum
height standard. The court further found that neither the
defendants nor their officials had engaged in employment
practices with a wilfull or conscious purpose of excluding
blacks and Mexican-Americans from employment, but to the
contrary, had engaged in efforts designed to increase minority
representation in the Fire Department. App. D, p.4. Asa
remedy, the court ordered that the County hire all future
entry-level firemen in accordance with a hiring quota of 20%
black and 20% Mexican-American until such time as the per-
centage representation of those minorities in the entire Fire
Department in all ranks equaled their representation in the
County’s general population. L/
The only named plaintiffs in this case were individuals
who had applied for and taken only the 1972 written examina-
tion and who were certified on a hiring list from that exam
which was conceded by plaintiffs to have been prepared and
utilized in a non-discriminatory manner. No individual who had
been unsuccessful on the 1969 or any prior exam was named as
a plaintiff, nor did the plaintiffs seek to represent such prior
applicants, the complaint alleging that it was filed only on behalf
of “blacks or Mexican-Americans” who are current or future
applicants for employment as Los Angeles County Firemen.
(Clerks Transcript, lines 20-24, p. 62.)
1/
At the time of judgment, blacks and Mexican-Americans comprised
0.5% and 3% respectively of the Fire Department’s firefighter personnel
(approximately 1762) and 10.9 and 18.3% of the County’s general
population.
6.
Ee
On appeal, the United States Court of Appeals for
the Ninth Circuit, in its original decision, reversed the judgment
under Sec. 1983 because the County was not a “person,”’ and
affirmed the judgment finding the County in violation of Sec.
1981. The court found no violation of Tit!e VII because the
tests administered in 1972 had not been implemented; that is,
no civil service list was promulgated or hires made as a conse-
quence of the test results. Nevertheless, the court ruled that
Title VII standards were applicable to Sec. 1981 claims and that
a violation of Sec. 1982 could be established merely by a showing
that a hiring practice had a disparate effect on minorities and
the employer was unable to validate the test as job-related. The
circuit court reversed the trial court’s judgment upholding
petitioner’s 5’7” minimum height standard and remanded for
reconsideration of the quota.
Subsequent to its original decision, the Ninth Circuit,
upon petitioner's request, granted a rehearing to determine, in
light of this Court’s recent decision in Washington v. Davis,
426 U.S. 229 (1976), whether proof of purposeful discriminatory
intent is required for a violation of Sec. 1981. On rehearing,
the Ninth Circuit (Judge Wallace dissenting) affirmed its original
finding that there was no operational distinction between a
cause of action based upon Title VII and Sec. 1981 and that the
adverse impact standards evolving from Title VII cases were
sufficient to establish liability under Sec. 1981. It was held that
a showing of deliberate intent to discriminate was not a require-
ment under Sec. 1981 as it was under the United States Constitution,
4
/ .
as determined by this Court in Washington v. Davis. The
Ninth Circuit, however, did rule that respondents lacked
standing to represent prior unsuccessful applicants including
those taking the 1969 test because the class did not include
any prior unsuccessful applicants. Van Davis, et al. v. County
of Los Angeles, et al, 566 F.2d 1334 at 1338.
Judge Waliace dissented, being of the opinion that
constitutional standards were applicable to proving discrimination
under Sec. 1981 and noting that, even if it were otherwise, the
quota hiring order was improper in view of the court’s finding
that respondents lacked standing to represent former applicants.
The written civil service test challenged in this litiga-
tion was administered to applicants for entry-level firefigher
positions twice, once in 1969 and again in January 1972. The
oral interview and physical agility portions of the examination
process were not attacked because they had no disproprotionate
impact on minorities. The 1972 administered test was utilized
only on a pass-fail basis with 97% of all applicants passing. As
to these passing applicants, their subsequent oral interviews
and physical examinations had no adverse impact.
The County of Los Angeles hired no firemen from
well before March 24, 1972 (the effective date of Title VII)
until the Spring of 1973, when the first recruit class was composed
50% of minorities (10 blacks and 20 Mexican-Americans).2/
2/
The respondents, in their first and second amended complaints,
conceded that the hiring of this recruit class was done in a non-discriminatory
manner (Clerks Transcript p. 62, lines 20-22).
All subsequent hiring has been pursuant to the trial court’s
40% preferential minority hiring order of July,1973. At no
time was there any discriminatory hiring since March 24, 1972,
or as a consequence of the 1972 written test.
The 1969 written exam as utilized in the hiring of
new firefighters had an adverse impact on blacks and Mexican-
Americans. The County, however, in the administration of
the subsequent 1972 exam, initially intended (as ultimately
occurred) to set the cutoff score extremely low so that 97% of
the applicants passed, and then process through the oral interview
and physical agility phases of the selection process approximately
500 of those applicants. These 500 would be chosen totally
by random selection so that the minority applicant percentage
which approximated their community representation would be
maintained throughout the subsequent stages of the selection
process which had shown ro adverse impact.
A state lawsuit enjoined the proposed random
selection and after a year’s delay, the County, because of the
pressing need for new firemen, init ly contemplated interview-
ing the top 544 applicants on the 1972 written test. No such
selection or interviews were ever commenced. Instead, all passing
applicants were interviewed and hires were made in a non-
discriminatory manner.
During the five-year pendency of the appeal, the
petitioners observed and in most cases exceeded the quota
hiring order and as of July, 1977 had hired as firemen recruits
9.
er ae
267 persons, of which 158 (59.1%) were blacks or Mexican-
Ameircans. Pursuant to the terms of the judgment the district
court receives annual reports and retains jurisdiction over the
case until the entire department reaches community racial
parity.
REASONS FOR GRANTING THE
PETITION
The reasons for granting the petition are
1. An important question of federal law of great
public importance should be settled by this court in order
to harmonize the standards for discrimination under 42 U.S.C.
Secs. 1981, 1983, and the United States Constitution. More
specifically, are Title VII standards of presumptive discrimina-
tion (without a requirement of purposeful intent) applicable
to actions under Sec. 1981 but not applicable to claims of dis-
crmination under Sec. 1983 or the 14th Amendment to the
United States Constitution?
2. The decision of the Ninth Circuit appears to be
in conflict with an applicable decision of this court, to wit:
Washington v, Davis, 426 U.S. 229 (1976).
3. The decision of the Ninth Circuit, ruling that
purposeful discriminatory intent is not required for a cause of
action under Sec. 1981, is in conflict with decisions of at least
two other Courts of Appeal.
10.
I
CONSTITUTIONAL, NOT TITLE VU,
STANDARDS OF DISCRIMINATION
SHOULD GOVERN CLAIMS UNDER
42 U.S.C. SEC. 1981; PURPOSEFUL
DISCRIMINATION IS THE CORRECT
CRITERION FOR ADJUDGING A
VIOLATION OF SEC. 1981.
A federal issue of extreme importance is created by
the Ninth Circuit's holding that “[w]e cannot conclude that
Washington embraced a ruling that a showing of disproportionate
impact no longer will suffice to establish a prima facie case of
employment discrimination under Sec. 1981. In our view, there
remains no operational distinction in this context between
liability based upon Title VII and Sec. 1981," Van Davis y.
County of Los Angeles, 566 F.2d 1334 at 1340. The liability
of the petitioner under Sec. 1981 was predicated solely upon
a showing of adverse impacton mincrities, the trial court
affirmatively finding that no deliberate intent to discriminate
was present. The application to Sec. 1981 of a presumption of
discrimination based on adverse-impact, originating from inter-
pretations of Title VII, is incorrect, at variance with this
Court’s decision in Washington v. Davis, and has ramifications
extending far beyond employment discrimination cases. Such
a holding would:
11.
1. Encompass non-employment discrimination actions
brought under Sec. 1981 which, as this Court observed in
Washington v. Davis, would raise serious questions about, and
perhaps invalidate, a whole range of tax, welfare, public service,
regulatory, and licensing statutes that may have a disproportionate
impact. This Court in Washington v. Davis, 426 U.S. 229 at
244-245, footnote 12, specifically rejected the application of
Title VII presumption standards to those areas of government
action;
2. Permit the procedural and statutory prerequisites
and administrative enforcement procedures of Title VII to be
circumvented by the mere allegation of a cause of action under
Sec. 1981, thus opening the federal courts to a flood of litigation
that Congress intended should be channeled through and
reduced by the EEOC administrative machinery;
3. Create differing standards for proving discrimina-
tion between Secs. 1983 and 1981, although both statutes are
premised on the protection of constitutional rights;
4. Negate the recent decisions of this Court and
circuit courts of appeal in /nternational Brotherhood of
Teamsters v. United States, 431 U.S. 324 (1977); Jones vy.
City of San Antonio, 568 F.2d 1224 (5 Cir. 1978), which held that
the extension of Title VII to governmental entities in March, 1972
was not retroactive and the decision in United Air Lines v. Evans,
431 U.S. 553 (1977), that a discriminatory act that has not been
made the basis of a timely charge cannot constitute a present
12.
violation of Title VII under the theory of a continuing effect of
past discrimination.
The filing of a Title VII charge and resort to Title VII
administrative machinery are not prerequisites for the institution
of a Sec. 1981 action. Johnson v. Ry Express Agency, Inc.,
421 U.S. 454 (1975). Thus, Title VII administrative require-
ments could be easily circumvented merely by casting the
complaint in the form of a Sec. 1981 action. Moreover, if
Title VII standards of proof and liability are equally applicable
to Sec. 1981 actions, there was little reason for Congress to
extend Title VII to public entities in 1972.
The decision of the Ninth Circuit in the instant case,
that the adverse impact standards enunciated in the Title VII
case of Griggs v. Duke Power are perforce applicable to Sec. 1981
actions, is inconsistent with this Court’s decision, in Washington
v. Davis, supra, holding that they are not applicable to consti-
tutional claims. Both Secs. 1981 and 1983 are statutes enacted
to enforce constitutional rights and are not specifically employ-
ment discrimination statutes supported by the same congressional
intent this Court ruled was present in the 1964 enactment of
Title VIL.
Section 1981 is a post-Civil War Reconstruction Era
statute enacted in 1866 to enforce the 13th Amendment to the
United States Constitution which prohibits involuntary servitude,
and extends to others the same right to make and enforce
contracts enjoyed by white citizens — that is, equal protection
13.
of the laws. Section 1981 was subsequently reenacted as
part of the Civil Rights Act of 1871, which was designed to
implement the 14th Amendment.
Section 1981 prohibits racial distinctions in the terms
of or in the right to make a contract. It does not incorporate
the subtleties and rigorous standards relating to adverse impact
and test validation that have evolved with the passage of
Title VII and its subsequent interpretation by the courts and
administrative agencies. Indeed, none of these concepts could
have possibly been in the minds of the enactors of that statute
in 1866.
The rationale enunciated by this Court in Washington vy.
Davis ,with regard to constitutional protections against discrimination
applies equally to Sec. 1981. Thus, if the employer deliberately
discriminates in making an employment contract based on race,
or specifies different terms and conditions thereof based solely
on race, then those statutes as well as the United States Consti-
tution have been violated. But this is clearly not what occurred
in the instant case or in Washington v. Davis. In both instances,
the same test was administered‘ to all races and the same grading
and scoring standards for determination of eligibility for appoint-
ment were applied equally and consistently to all races. The
respondents have predicated their entire case solely upon showing
an adverse impact and a claim that the defendants cannot prove
the test to be job-related -- evidentiary principies that have
evolved solely from Title VII decisions.
In addition to disagreeing with the application of the
Griggs standard in previous employment discrimination cases
under Secs. 1981-1983, this Court in Washington v. Davis expressly
ruled it inapplicable to constitutionai discrimination claims in
other contexts. Racial discrimination cases not involving employ-
ment have been and will continue to be brought under Sec.
1981 as well as Sec. 1983 and the Constitution. There is nothing
in the legislative history of Sec. 1981 which suggests that liability
is to be premised merely upon a showing of disproportionate
impact or that employment cases are to be accorded special
treatment or be subject to different standards of proof than other
civil rights cases brought under that statute.
Title VII, however, is a statute with a unique legislative
history intended to deal specifically with employment discrimina-
tion, and its adverse impact standard has evolved through
subsequent judicial interpretations premised on the seminal
case Of Griggs v. Duke Power Co. It is rightly accorded different
standards and methods of proof as distinguished from Secs.
1981, 1983, and the Constitution. Proof of intentional dis-
crimination, however, should be the consistent standard applic-
able to claims under Sec. 1981 as well as Sec. 1983 and the
United States Constitution.
itl
Il
THE DECISION IS CONTRARY TO THE
SUPREME COURT'S RULING ON THE
INTENT STANDARD FOR CONSTITU-
TIONAL DISCRIMINATION IN
WASHINGTON V. DAVIS AND ITS
DECISION ON STANDING IN EAST
TEXAS MOTOR FREIGHT V. RODRIGUEZ
In Washington v. Davis, supra, This Court ruled that
the standard for adjudicating claims of racial discrimination
under Title VII was not the same standard for adjudicating
such claims under the Constitution. Although the complaint
in Washington alleged a cause of action under Sec. 1981 as
well as the Constitution, the Court did not specifically refer to
Sec. 1981 in its opinion. The rationale behind the Court’s
decision, however, would appear equally applicable to actions
under Sec. 1981 because that statute, like Sec. 1983, was intended
to provide statutory protection to constitutional rights and,
while originating in the Civil Rigr*s Act of 1866, was reenacted
with Sec. 1983 as part of the Civil Rights Act of 1871. This
Court in footnote | 2 of Washington disagreed with a long line of
earlier employment discrimination cases brought under both
Secs. 1983 and 1981 applying Title VII standards of proof.
A few days after deciding Washington v. Davis,
this Court vacated the judgment and remanded the case of
Chicano Police Officers Association v. Stover, 426 U.S. 944
(1976), an action brought under Sec. 1981 and Sec. 1983 but
16.
not Title VII, for reconsideration in light of the opinion in
Washington v. Davis. In Chicano Police Officers Association,
the Tenth Circuit Court, similarly tc the Ninth Circuit in the
instant case, had concluded that the measure of a claim under
the Civil Rights Acts of 1866 and 1871 was the same as that
applicable to Title VII cases. In view of the district and
circuit court express findings of adverse impact and lack of job
relatedness, remand would not have been necessary if Title
VII standards were, in fact, applicable to Sec. 1981 claims,
regardless of the effect of Washington vy. Davis on the Sec.
1983 claim. It should be apparent that because Sec. 1981 has been
held to apply to a wide range of equal protection cases, congruent
with those actionable under Sec. 1983 and the Constitution, this
Court’s holding in Washington v. Davis, distinguishing claims
under Title VII from those under the Constitution, is subject
, to circumvention in most equal protection cases by the simple
expedient of alleging a claim under Sec. 1981. Since Sec.
1981 is applicabie in every case in which constitutional claims
of employment discrimination based on race are asserted, the
Supreme Court’s decision on employment discrimination in
Washington v. Davis would be rendered essentially meaningless.
ill
THE OPINION OF THE NINTH CIRCUIT
IS IN CONFLICT WITH OTHER CIRCUIT
COURT OPINIONS
The Courts of Appeals of the Tenth, Sixth, Seventh,
and Eighth Circuits have all held that purposeful intent is
17
{
j
a
4 required to prove a cause of action under Sec. 1981. Numerous
) District Courts have reached he same conclusion. 2/ With the excep-
tion of the Ninth Circuit in the instant case, no Circuit Court subse-
quent to Washington v. Davis has ruled that Title VII standards not
requiring proof of discriminatory intent are applicable to actions
under Sec. 1981.
The Tenth Circuit, upon remand in Chicano Police
Officers Assn. v. Stover, 552 F.2d 918 (March 2, 1977),
construed this Court’s purposeful intent ruling in Washington
v. Davis as pertaining to claims under Sec. 1981, and remanded the
case to the district court for a determination of whether such intent
existed.4/ The Sixth Circuit in Arnold v. Ballard, 12 EPD par.
11, 224 (1976), a suit brought under Sec. 1981, Sec. 1983, and
the U.S. Constitution, vacated their previous decision and
3/
Lewis v. Bethlehem Steel Corp.,440 F Supp. 949, 963 (1977).
United States v. State of So. Carolina, _ F Supp.___, 15 FEP
Cases 1196 (1977), (3-judge panel that included two circuit judges).
Crocker v. Boeing Co., 437 F Supp. 1138 (1977).
Veizaga v. National Board of Respiratory Therapy, 13 EPD par. 11,
525, 6878, 6881 (N.D. Ill., January 27, 1977).
4/
The circuit court’s opinion stated:
“[T] he error in our holding and the views expressed by us is
clear. We stated that we agreed . . . with the view that the
measure of a claim under the Civil Rights Act is in essence that
applied to a suit under Title VII of the Civil Rights Act of 1964.
' 526 F.2d at 438, 11 FEP Cases at 1061. This was contrary to
the principle holding that came in Washington v, Davis, supra,
at 238, 12 FEP Cases at 1418. All of our reasoning and treat-
ment of the case which proceeded from the erroneous standard
must be corrected.” Supra, at 920.
;
:
z
|
é
“4
18.
;
:
~
c
Ss
%
“*
4
remanded the case to the district court for reconsideration in
light of Washington v. Davis. Upon remand the District Court
recently concluded that purposeful discriminatory intent was
required under Sec. 1981 and expressly declined to follow the
Ninth Circuit’s opinion in the case at bar, relying instead upon
the reasoning of Judge Wallace’s dissent (Memorandum Decision
and Order, C73-478, Mar. 14, 1978).
The Seventh Circuit in two recent cases appears to have
concluded that a showing of racially discriminatory purpose is
required to establish a violation of Sec. 1981. In United States
v. City of Chicago, 549 F.2d 415 (1977), the court affirmed
liability only under Title VII and reversed the district court’s
judgment on all other grounds, including Sec. 1981, because of
the failure to meet the intentional discrimination standard.
In City of Milwaukee v. Saxbe, 546 F.2d 693, 705 (1976), the
same court held that the burden in Sec. 1981 cases is the same
as the constitutional burden under the Fifth Amendment.
The Eighth Circuit most recently in Johnson v.
Alexander, __ F.2d __, 16 FEP Cases 894 (8th Cir.,
February 17, 1978), affirmed a district court judgment which,
in reliance on Washington vy. Davis, found inter alia that the
protection against racial discrimination under Secs. 1981, 1983
does not extend beyond the equal protection guarantees of the
Fifth and Fourteenth Amendments to the Constitution, and
that since the challenged Army regulation ®/ was not adopted
* 3
Army Reg. 40-501, par. 2-34(a), disqualifies prospective enlistees
who have had “frequent encounters with law enforcement agencies or
antisocial attitudes or behavior.” The Plaintiff, a black, contended
that disclosure of arrest records had an adverse impact on minorities.
19.
with any discriminatory intent, it did not violate Sec. 1981 simply
because in operation it bore harder on minority groups than
whites. The Eighth Circuit specifically rejected appellant’s
contention that Title VII standards should be applied to plain-
tiffs Sec. 1981 claim.
The Fifth Circuit in Harkless v. Sweeny Independent
School District, ___ F.2d __, 14 EPD, par. 7669, 5295 (1977),
held that Sec. 1981 requires a showing of purposeful discrimina-
tion. In accord was their decision in Wade v. Mississippi
Coqperative Extension Service, 528 F.2d 508, 518 (1976).
IV
THE AFFIRMED QUOTA HIRING ORDER
CLEARLY EXCEEDS THE COURT'S
REMEDIAL AUTHORITY.
The instant case was brought on behalf of the 1972
and future applicants, not one of which proved he had been
discriminatorily denied a job. The Circuit Court held that
respondents had no standing io represent any applicants prior
to the 1972 exam, and as to the hiring resulting from the 1972
examination process, the respondents conceded that it had
been done in a nondiscriminatory manner. With no post-Title
VII discriminatory hiring proven, it is clear that despite their
lack of standing the respondents were challenging pre-Title
Vil hiring practices. The quota order they sought and obtained
was solely intended to provide a remedy only for pre-Act
hiring. it was affirmed by the appellate court totally absent
20.
oo a0
a showing of discriminatory intent, and necessarily on the
theory that it remedied a violation of Sec. 1981 as no post-
Title VII discriminatory hiring had occurred. Assuming,
arguendo, that discriminatory intent is not required for a cause
of action under Sec. 1981, the quota order nevertheless is in
excess of the court’s jurisdiction because of the respondents’
lack of standing, as well as the sweeping scope of the order
requiring the entire department achieve racial parity.
The petitioners’ uneffectuated proposal to interview
the top 544 applicants on the 1972 written test cannot form
the basis of a violation of Title VII, much less justification for
an order requiring racial parity in the entire work force. A
violation of Title VII requires proof of a pattern and practice
of discrimination. Isolated incidents, even if effectuated, are
insufficient to establish liability under that statute. Hazelwood
School District v. United States, ___ U.S. ___, 97 Sup.Ctt.
2736, 15 FEPCases | (1977); Jnternational Brotherhood of
Teamsters v. United States, 431 U.S. 324, 14 FEP Cases 1514
at 1519 (1977).
Quota hiring orders unrelated to the injury established
are not within the remedial power of the court. The respondeits
in this action, suing only on behalf of present and future appli-
cants, did not establish that any of their number had been
discriminatorily refused a job. The proposal to interview the
‘top 544 candiates had no impact on the departmental composi-
tion as no hires were made as a result of such proposal and the
21
interviews were not restricted to the top 544 persons.
The decision of the Circuit Court affirming the quota
hiring order disregards the applicable statute-of limitations on
Sec. 1981 claims, &/ ignores this court’s ruling in the United
Airlines v. Evans, 431 U.S. 553 (1977), that past discriminatory
acts not the subject of a timely complaint have no present legal
consequences, and, to the extent Title VII is even applicable,
purports to retroactively remedy acts occurring before its
March 24, 1972, effective date.”/ It is clear that the majority
misconstrued the decision in United Airlines v. Evans in their
holding at page 1344, footnote 20, that time-barred claims may
be remedied retroactively.
Within the past two years, this Court has in several
opinions expressly declined to extend Title VII remedies
retroactive to the Act’s effective date, /nternational Brotherhood
of Teamsters v, United States, 431 U.S. 324; Franks v. Bowman,
424 U.S. 747 (1976). In Teamsters, and particularly in Hazelwood
School District v. United States, supra, this Court clearly dis-
tinguished between pre and post-Title VII hiring practices,
observing that the employer must be given an opportunity to
6/
The applicable Statute of Limitations is three years. See Mills v.
Small, 446 Fed.2d 249 (1971).
7/
: Indeed, unless one assumes that al/ of the 1760 firefighters on the
force had been hired in the eight years immediately preceding the lawsuit,
the quota order seeks to remedy unproven discrimination occurring even
before the original enactment of the Title VII in 1964.
22.
, —
show the claimed discriminatory pattern was a product of
pre-Act hiring rather than unlawful post-Act discrimination.
This necessarily implies not only a time limitation on Title
VII standards of proof, but also limitations on the reach of
judicially imposed remedies.
The Ninth Circuit’s decision establishes an unjustified
dichotomy between injunctive (preferential hiring) relief and
other accepted remedies, such as back pay and retroactive
seniority which have been consistently held to be limited in
scope by the applicable statute of limitations or the effective
date of Title VII and similar employment discrimination statutes.
Franks v. Bowman, supra; International Brotherhood of Teamsters
v. United States, supra, Back pay awards in Sec. 1981 employ-
ment discrimination suits have been held to be limited to the
applicable 3-year Statute of Limitations period preceding the
filing of the action. Johnson v. Goodyear Tire & Rubber Co.,
491 F.2d 1364 (S Cir. 1974).
The quota ruling has consequences extending far
beyond the impact on the parties herein. It, of course, effectively
makes Title VII retroactive, reduces the administrative filing
requirements of Title VII to Meaningless technicalities, and
provides a remedy for time-barred claims. Moreover, it permits
federal trial courts, on the most tenuous of grounds, to issue
quota orders requiring parity of the employer’s work force
with the current community ethnic representation.
23.
—
CONCLUSION
For the foregoing reasons, it is respectfully requested
that this Court grant the Petition for Writ of Certiorari herein.
Executed this 26th day of April, 1978, at Los Angeles,
California.
Respectfully submitted,
JOHN H. LARSON
County Counsel
WILLIAM F. STEWART
Chief, Labor Relations Division
Attorneys for Appellants
46 FEDERAL REPORTER, 2d SERIES
APPENDIX A
T=
Van DAVIS et al., Plaintiffs-Appellarts, .
.*
COUNTY OF LOS ANGELES et al. etc.
Defendants-Appcllees.
Van PAVIS et al., Plaintiffs-Appellees,
v
COUNTY OF LCS ANGELES et al., etc.,
Defendants-Appellants.
Nos. 73-3008 and 73-3009.
United States Court of Appeals,
Ninth Circuit.
Dec. 14, 1977.
Rehearing Denied Jan. 30, 1973.
a ‘firmed in part, reversed in part and
remanded.
Waliace, Cirevit Judge, dissented with
an opinion.
Before TUTTLE,* HUFSTEDLER ard
WALLACE, Circuit Judges.
TUTTLE, Circuit Judge:
This Court entered its original opinion in
this case on October 20, 1976. The Court
* Honorable Elbert P. Tuttle, Senior United States
Circuit Judge, Fifth Circuit, sitting by designa-
tion.
1. The plaintiff class also included all present
and future black and Mexican-American em-
plovees of the Fire Department, who alleged
racial discrimination im connection with de-
fendants’ promotion practices. These addition.
al allegations, however, were abandoned pror
to tral.
thereafter granted defendants-cross-appel-
lants’ motion for rehearing, and che case
was regularly set down for reheering and
oral argument. Although the principal ba-
sis for the rehearing motion was the Su-
preme Court’s decision in Washington v.
Davis, 426 U.S. 229, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976), the parties were permit-
ted to brief and argue all other issues as
well.
We now withdraw the original opinion
and decision, and this opinion and decision
are announced in their stead.
This suit was brought on behalf of all
present and future black and Mevxican-
American applicants for positions as fire-
men with the Los Angeles County Fire De-
partment,' alleging that the defendants Los
Angeles County, the County Board of Su-
pervisors and the County Civil Service Com-
mission had been guilty of racial discrimina-
tion in hiring in violation of the Fourteenth
Amendment, 42 U.S.C. §§ 1981, 1983 and
Title VII of the Civil Rights Act of 1964, 42
U.S.C. ¢ 2000e et seq?
_ The district court found that the Los
Angeles County Fire Department employed
blacks and Mexican-Americans grossly out
of proportion to their number in the popula-
tion of Los Angeles County. The court
further found that the Fire Department,
despite i's admitted knowledge of its prior
discriminatory practices and its bad reputa-
tion as an employer in the minority commu-
nity, failed to undertake any effective posi-
tive steps to eradicate the effects of prior
discrimination. Accordingly, the court or-
dered accelerated hiring of racial minorities
in a ratio of one black and one Mexican-
Americen applicant for each three white
applicants until the effects of past discrimi-
nation had been erased?
2. Jurisdiction was based on 28 U.S.C. § 1343.
3. Data introduced by the plaintiffs showed that
this 1-1-3 ratio, given the present rate of hir-
ing. would produce a work force of minority
firemen in proportion to the number of minor.
ty persons in the community by 1979 for blacks
and 1953 fur Mesican-Arreoneans.
PRN I
DAVIS vy. COUNTY OF LOS ANGELES
1337
Cite as 566 F.2d 1334 (1977)
Despite the fact that the Mexican-Ameri-
can population of Los Angeles County was
approximately double the size of the black
population, the district court ordered identi-
cal accelerated hiring for both groups due
to its finding that the Fire Department's
5°17” height requirement for job applicants
was a valid requirement for employment
and that this height requirement had the
effect of eliminating 41% of the otherwise
eligible Mexican-American applicants from
consideration.
The plaintiffs appeal the trial court's
finding that the 57” height requirement is
valid and could therefore be used in limit-
ing the relief available to the Mexican-
American members of the plaintiff class.
The defendants cross-appeal the trial
court’s order of accelerated hiring. We af-
firm the district court’s finding of a current
violation of the rights of members of this
class by the improper post-1971 use of an
unvalidated written test as a selection de-
vice for entry level positions and its order
of accelerated hiring to cure past racial
discrimination; we disagree with the
court’s findings that plaintiffs have stand-
ing to challenge defendants’ pre-1971 use of
an unvalidated written test as a selection
device and that the 5’7” height reyuirement
has been sufficiently validated by the de-
fendants. Accordingly, we reverse and re-
mand for reconsideration of the proper ra-
tio of accelerated racial hiring to be or-
dered.
I. Written Examination Procedures
[1] Despite a minority population of ap-
proximately 29.1% in Los Angeles County,
only 3.3% of the firemen employed by the
defendants at the time of trial were black
or Mexican-American. Plaintiffs alleged,
4. The cases holding that statistics alone may
prove a prima facie case of employment dis-
cnmination, thereby shifting the burden to the
defendants to justify the racial imbalance, are
by this time legion. See, e. g, United States v.
Masonry Contractors Ass'n of Memphis, inc.,
497 F.2d $71, 875 (6th Cir. 1974); Pettwaw v.
American Cast Irun Pipe Co.. 494 F 2d 211, 225
(Sth Cur. 1974); United States v. N. L. Indus.,
Inc., 479 F 2d 354, 368 (Sth Cir. 1973), United
States v. Hayes Int'l Corp., 456 F.2d 112, 120
and the trial court found, that this severe
racial imbalance resulted in part from the
defendants’ utilization of unvalidated writ-
ten examinations to rank applicants for po-
sitions as firemen. The defendants do not,
and indeed cannot, dispute that these verbal
aptitude tests, administered to applicants in
August 1969 and in January 1972, had a
discriminatory impact on minority appli-
cants. Of the 244 blacks who took the 1969
examination, 5 were hired; of the 100 Mex-
ican-Americans, 7 were hired, while of the
1080 whites taking the test, 175 were hired.
Thus, while approximately 25% of the 1969
applicants were black or Mexican-Ameri-
can, based on the results of this test only
6.4% of the hires were minorities. Black
and Mexican-American applicants fared no
better on the 1972 examination. Specifical-
ly, while 25.8% of the white applicants were
among the top 544 scorers on the test, only
5.1% of the black applicants were included
in that group. Applying the now-familiar
standards announced in Griggs v. Duke
Power Co., 401 U.S. 424, 91 S.Ct. 849, 28
L.Ed.2d 158 (1971), the district court con-
cluded that such statistical data alone es-
tablished a prima facie case of racial! dis-
crimination in employment, thereby shift-
ing the burden to the defendants to estab-
lish that the tests were job-related We
agree that defendants failed to satisfy their
burden.$
Defendants have challenged the plain-
tiffs’ standing to complain of the use of the
unvalidated 1969 written test. In light of
the fact that plaintiffs’ class did not include
any prior unsuccessful applicants, it follows
that plaintiffs neither suffered nor were
threatened with any injury in fact from the
use of the 1969 examination. No firemen
were hired on the basis of success on this
(5th Cir. 1972); United States v. Ironworkers
Local 86, 443 F 2d 544, 550-51 (8th Cir.), cert.
denied, 404 U.S. S84, 92 S.Ct 447, 30 L.Ed.2d
367 (1971).
§. DUecfendants conceded that no studies estab-
lishing the validity of the wntten employment
tests have been conducted in accordance with
“professionally acceptable methods.” See Al-
bemarle Paper Co. v. Moody, 422 U.S. 405, 95
S.Ct 2362, 45 L.Ed.2d¢ 280 (1975).
ee es
VR eh Oe Ad we Ee Ee Lat to Cele eerie es
nT ee ee ee P ‘
(=
iit i eines aaa ve a
1338
test after plaintiffs became applicants in
October 1971. The parties stipulated that
approximately 100 vacancies occur in the
ranks of firemen each year, and testimony
at trial established that 187 applicants were
placed on aa eligibility list followi..z the
1969 test. Based on these facts, we must
conclude that the 1969 list was depleted
before plaintiffs applied for employment as
firemen. -
[2] In the absence of a statute expressly
conferring standing, it is wel! settled that
in order to have standing a plaintiff must
suffer some actual or threatened injury as a
result of the alleged unlawful conduct.
See, e. g., Linda S. v. Richard D., 410 U.S.
614, 617, 93 S.Ct. 1146, 35 L.Fd.2d 536
(1973); Moose Lodge No. 107 v. Irvis, 407
U.S. 163, 166-67, 92 S.Ct. 1965, 82 L.Ed.2d
627 (1972); Flast v. Cohen, 392 U.S. 83, 101,
88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker
v. Carr, 369 U.S. 186, 204-208, 82 S.Ct. 691,
7 L.Ed.2d 663 (1962). It is thus clear that
plaintiffs lacked standing to challenge de-
fendants’ prior use of the test in 1969.8
6. Our holding on this point makes it unneces-
sary to discuss defendants’ contention that the
recent decision in East Texas Motor Freight
Sys., Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct.
1891, 52 L.Ed.2d 453 (1977), precludes plain-
tiffs from attacking the defendants’ pre-1971
hiring procedures.
It is equally clear that defendants’ decision to
employ the 1972 written test as a s«!ection
device was an unlawful employment practice
which had adverse impact on the racial class of
plaintiffs. The plaintiffs thus have standing to
litigate the lawfulness of the 1972 test.
7. Only four other Courts of Appeals have had
occasion to apply or construe the decision in
Washirgton. The Court of Appeals for the
D.C. Circuit has stated that a plaintiff proceed-
ing under Title Vii and § 1981 need not show
the type of purposeful or intentional discrimi-
nation required to estublish a violation of the
Equal Prote.tion Clause Kinsey v. First Re-
gional Securities, Inc., 557 F.2d 330 (D.C. Cir.
1977) (dictum).
In United States v. City of Chicago, 549 F.2d
415 (7th Cir. 1977). the court reversed the trial
court’s finding that the defendants’ written ex-
amination violated the Fourteenth Amendment
solely because the plaintiffs failed to satisfy the
purposeful cescrimination requirement of
Washington, Id, at 435. Vhe City of Chicago
piauit:fis also had alleged that the exarunation
violated § 1981, and defendants here contend
that the appeals court equated 9 1981 with the
566 FEDERAL REPORTER, 2d SERIES
As previously indicated, the district court
reached the conclusion that defendants’ use
of unvalidated written examinations was an
illegal employment practice through appli-
cation of the principles announced in
Griggs, a Title VII case. Subsequent to
trial on the merits in this case, the Supreme
Court in Washington v. Davis, 426 U.S. 229,
96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), held
that to establish a prima facie case of un-
constitutional employment discrimination,
discriminatory intent or purpose must be
shown rather than or in addition to a statis-
tical showing of disproportionate impact.
Defendants interpret Washington to re-
quire similar proof in cases alleging employ-
ment discrimination under § 1981. Accord-
ingly, defendants urge us to reverse the.
decision of the district court, since no show-
ing was made that defendants administered |
the 1972 examination with any intent or
purpose to discriminate against minority
applicants. The issue presented is one of
first impression in this Circuit.’ We have
Fourteenth Amendment for purposes of deter-
mining the burden of proof applicable to non-
Title VI! actions. The City of Chicago court,
however, made no mention of § 1981 in revers-
ing the district court's ruling but specifically
held that the defendants’ hiring and promotion
policies “did not violate the Constitution.” Id.
(emphasis added).
In Chicano Police Ofticer’s Ass'n v. Stover,
526 F.2d 431 (10th Cir. 1975), an employment
discrinunation action alleging violations of the
Equal Protection Clauss, §§ 1931, 1983 and
1985, the court held that “the measure of a
claim under the Civil Rights Act is in essence
that applied in a suit under Title VII 4
id. at 438. (citations omitted). Subsequently,
the Supreme Court granted certiorari, vacated
the judument and remanded for reconsideration
in light of Washinyton v. Davis. Stover v.
Chicano Police Officer's Ass'n, 426 U.S. 944, 96
S.Ct. 3161, 49 L.Ed2d 1181 (1976). Defend-
ants here argue that had the Supreme Court
intended the adverse impact rule of Title VII to
apply to § 1981 actions after Washington, the
Court sinply would have denied certioran in
Stover and allowed the judgment to stand on
the basis of a Miolation of § 198i alone. How-
ever, neither the district court nor the court of
appeals in Stover ever tound that defendants
had vichued § 1981. Further, it is clear Guat
the Supreme Court's action was necessitated
by the court of appeal’s failure to distinguish
causes of action under §$ 195i and Iys3 in
DAVIS v. COUNTY OF LOS ANGELES
1339
Clte as 566 F.2d 1334 (1977)
carefully reviewed the Court's opinion in
Washinyton and the post- Washington cases
brought to our attention by the parties.
We must reject defendants’ argument.
The primary controversy in Washington
involved the validity of a qualifying test—
“Tost 21"—administered to persons seeking
employment with the D.C. Metropolitan Po-
lice Department. The plaintiffs alleged
that Test 21€xcluded a disproportionately
high number of black applicants in violation
of their rights under the Due Process
Clause of the Fifth Amendment, 42 U.S.C.
§ 1981 and § 1-320 of the D.C. Code. 426
U.S. at 233, 96 S.Ct. 2040. Following vari-
ous preliminary proceedings before the trial
court, plaintiffs moved for partial summary
judgment on their constitutional claim
alone. Defendants also moved for summa-
ry judgment, asserting that plaintiffs were
entitled to relief on neither constitutional
nor statutory grounds. The district court,
after finding that plaintiffs’ statistical
showing of disproportionate impact estab-
lished a prima facie case of discrimination,
concluded that Test 21 was “reasonably and
directly related to the requirements of the
police recruit training program.” Davis v.
Washington, 348 F.Supp. 15, 17 (D.D.C.
1972). Accordingly, the court granted de-
fendants’ and denied plaintiffs’ motions.
Id. at 18.
On appeal, plaintiffs argued that their
summary judgment motion, which rested on
purely constitutional grounds, should have
been granted. The Court of Appeals for
the D.C. Circuit agreed and reversed. Da- -
vis v. Washington, 168 U.S.App.D.C. 42, 512
F.2d 956 (1975). Announcing that it would
be guided in its decision by the Title VI!
standards formulated in Griggs, the appeals
equating the “Civil Rights Act” and Title VU.
And although the case was eventually remand-
ed to the district court, Chicano Police Officer's
Ass'n v. Stover, 552 F.2d 918 (10th Cir. 1977),
the issue before this Court was not expressly
decided.
Finally, in Arnold v. Ballard, 12 E PD. © 11,-
224 (oth Cir. 1976) (per cura), the court va-
cated an evrlier decision and remanded for re-
consideration in light of Wustumton The per
curiam opinion, however, did not discuss the
court agreed that plaintiffs’ statistical
showing alone, without proof of a purpose
on the employer's part to discriminate,
made out a prima facie case, shifting the
burden of proof to the defendants. 168
U.S.App.D.C. at 47, 512 F.2d at 961. In
light of the district court’s finding of a
nexus between Test 21 and future success
in police training school, the court then
identified the “ultimate issue” to be
“whether that kind of proof [was] an ac-
ceptable substitute” for the job-relatedness
showing required by Griggs. Id, 168 US.
App.D.C. at 48-49, 512 F.2d at 962-63.
Concluding that it was not, the court direct-
ed that plaintiffs’ motion for partial sum-
mary judgment be granted and the defend-
ants’ motions denied.
The Supreme Court reversed, concluding
that plaintiffs “were entitled to relief on
neither constitutional nor _ statutory
grounds.” Washington v. Davis, 426 U.S.
229, 248, 96 S.Ct. 2040, 2052, 48 L.Ed.2d 597
(1976). Mr. Justice White prefaced Part II
of the majority opinion with this statement:
“Because the Court of Appeals erroneously
applied the legal standards applicable to .
Title VII cascs in resolving the constitution-
al issue before it, we reverse . . ..”
Id. at 238, 96 S.Ct. at 2046 (emphasis add-
ed). In holding that proof of racially dis-
criminatory intent or purpose is required to
show an equal protection violation, the
Court disavowed ever having ruled that “a
law or other official act is uncon-
stitutional solely because it has a racially
disproportionate impact.” Jd. at 239, 96
S.Ct. at 2047. It is significant that
throughout this discussion of “constitution-
al standards” and “Constitution-based
claims,"* the Court mentioned neither
issue now before us and did not explain the
rationale underlying the court's decision.
8. The language used by the Court clearly indi-
cates that Part Il of the opinion was directed
solely toward chums of unconstitutional em-
ployment discrimunation. The following pas-
sayes are illu trative: (1) “We have never held
that the censtitutemal standard tor adyudicat-
ing claims of invidious racial discrynination is
identical” to the Title VIP standerds 42€@ US.
at 239, 96 S.Ct. ut 2647 (emphasis added); (2)
“This ts not to sav that a law's dis-
1340
§ 1981 nor cases construing that statute.’
Nor can it be said that in resolving the
equal protection question before it, the
Court necessarily resolved the § 1981 claim
on the same basis.
{3} During recent history, every court
which has considered the question hus con-
strued § 1981 to bar discrimination in em-
ployment. See Long v. Ford Motor Co., 496
F.2d 500 (6th Cir. 1974); M&cklin v. Spector
Freight Sys., Inc.. 156 U.S.App.D.C. 69, 478
F.2d 979 (1973); Brady v. Bristol-Meyers,
Inc., 459 F.2d 621 (Sth Cir. 1972); Brown v.
Gaston County Dyeing Mach. Co., 457 F.2d
1377 (4th Cir.), cert. denied, 409 U.S. 982, 93
S.Ct. 319, 34 L.Ed.2d 246 (1972); Young v.
International Tel. & Tel. Co., 438 F.2d 757
(3d Cir. 1971); Sanders v. Dobbs Houses,
Inc., 431 F.2d 1097 (5th Cir. 1970), cert.
denied, 401 U.S. 948, 91 S.Ct. 935, 28
L.Ed.2d 231 (1971); Waters v. Wisconsin
Steel Works of Int’l Harvester Co., 427 F.2d
476 (7th Cir.), cert. denied, 400 U.S. 911, 91
S.Ct. 137, 27 L.Ed.2d 151 (1970). The courts
+ consistently have employed Title VII princi-
ples as a benchmark not only in cases in-
volving alleged discriminatory impact, see
Wade v. Mississippi Coop. Extension Serv.,
528 F.2d 508, 516-17 (5th Cir. 1976); King
v. Yellow Freight Sys., Inc., 523 F.2d 879,
882 (8th Cir. i975); Kirklamd v. New York
State Dept. of Correctional Servs., 520 F.2d
420, 425 (2d Cir. 1975), cert. denied, 429 US.
823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976); Bar-
nett v. W. T. Grant Co., 518 F.2d 543, 549
(4th Cir. 1975), but in other contexts as
well. See, e. g., Flowers v. Crouch-Walker
proportionate impact is irrelevant in cases in-
volving Constitution-based claims of racia! dis-
crimination.” Id. at 241, 96 S.Ct. ‘at 2048 (em-
phasis added), (3) “Disproportionate impact
' is not the sole touchstone of an invidi-
ous racial discriminai:inn forbidden by the Con-
stitution.” Id. at 242, 96 S.Ct. at 2049 (empha-
sis odiled), (4) “We are not disposed to adopt
(the) mere rigorous [Title VII] standard for the
purposes of applying the Fifth and the Four-
teenth Amendments * Id. at 247 48,
96 S.Ct. at 2051 (emphasis added).
9. Defendants contend that the Washington ma.
jority “specificaily referjred] to several & 19s]
cases and note(d) their Uisayvreemert with: the
appellate court's reliance upon the Title Vil
standards of proof.” The Court did nute its
566 FEDERAL REPORTER, 2d SERIES
Corp., 552 F.2d 1277, 1281 & n. 3 (7th Cir.
1977) (discriminatory discharge of employ-
ee); McCormick v. Attala County Bd. of
Educ., 541 F.2d 1094, 1095 (5th Cir. 1976)
(per curiam) (available remedies). Indeed,
the Supreme Court has recognized that Ti-
tle VII and § 1981 embrace “parallel or
overlapping remedies against discrimina-
tion.” Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47 & n. 7, 94 S.Ct. 1011, 1019, 39
L.Ed.2d 147 (1973). In the absence of any
express pronouncernent from the Supreme
Court—a pronouncement not delivered in
Washington —we are unwilling to deviate
from this established practice. Any unnec-
essary deviation not only could produce un-
desirable substantive law conflicts, see
Waters v. Wisconsin Stee! Works of Int.
Harvester Co., 502 F.2d 1309, 1316 (7th Cir.
1974), cert. denied, 425 U.S. 997, 96 S.Ct.
2214, 48 L.Ed.2d 823 (1976), but also would
dilute what has been a potent remedy for
the ills of countless minority employees sub-
jected to the unlawful discriminatory con-
duct of their employers. Thus, we cannot
conclude that Washington embraced a rul-
ing that a showing of disproportionate im-
pact no longer will suffice to establish a
prima facie case of employment discrimina-
tion under § 1981." In our view, there
remains no operational distinction in this
context between liability based upon Title
VII and § 1981.
[4,5] The defendants further argue that
the district court lacked jurisdiction under
either §§ 1981 or 1983 to decide these
disapproval of several cases but explained that
it was in disagreement only “to the extent that
those cases rested on or expressed the views
that proof of discriminatory racial purpose is
unnecessary in making out an equa! protection
violation.” 426 U.S. at 245, 96 S.Ct. at 2050
(emphasis added). Furthermore, each case cit-
ed in this context involved, in addition to a
§ 1981 claim, a claim under either the Equal
Protection Clause or § 1983.
10. Accord, League of Latin American Citizens
v. City of Santa Ana, 419 F Supp. 873 (C.D Cal.
1976). Bat see Ortiz vi fich, 14 F EP. Cases
1019 (D.Coio 1977), ms. tlovtman, 424
F.Supp. 490 (b.D.Mo 977), Resident Advisory
Bd v. Riz70, 425 F.Supp 987 (&.D.P2.1976).
Jods
DAVIS vy. COUNTY OF LOS ANGELES
1341
Cite as 566 F.2d 1334 (1977)
claims. As to § 1983, the defendants are
clearly correct. A municipality is not a
“person” suable under § 1983,"" and thus
the “hree municipal defendants are not sub-
ject w suit under § 1983. See City of
Kenosha v. Bruno, 412 U.S. 507, 511-13, 93
S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v.
Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961). Since no individual de-
fendants wege named in this suit, the plain-
tiffs’ § 1983 claim is barred.” Section 1981,
however, is not subject to the same jurisdic-
tional limitations. See Sethy v. Alameda
County Water Dist., 545 F.2d 1157 (9th Cir.
1976) (en banc).
[6,7] In summary, we believe the dis-
trict court properly found defendants’ use
of the 1972 written examination as a selec-
tion device to be a violation of § 1981.
Plaintiffs produced overwhelming statisti-
cal data to establish the test’s dispropor-
tionate impact upon minority applicants,
and the defendants were unable to validate
the test in terms of job-relatedness." De-
fendants’ decision, prompted solely by the
filing of this lawsuit, to abandon the writ-
ten exam as a selection device does not
moot the claim. United States v. W. T.
Grant Co., 345 U.S. 629, 632-33, 73 S.Ct.
894, 97 L.Ed. 1303 (1953)
11. 42 U.S.C. § T983 provides:
“Every person who, under color of any stat-
ute . . Of any State subjects
any citizen of the United States .
to the deprivation of any rights. . Se-
cured by the Constitution and laws, sha!l be
lable to the party mjured in an action at law,
suit in equity, or other proper proceedings for
redress.” (emphasis added)
12. Individuals may be sued in their official ca-
pacity. See Sterzing v. Fort Bend Independent
School Dist, 496 F.2d 92, 93 n. 2 (Sth Cir.
1972); United Farmworkers of Florida Housinv
Project, Inc. v. City of Del Ray Beach, 493 F.2c
799, 802 (5th Cir. 1974); Harper v. Kloster, 486
F.2d 1134, 1138 (4th Cir. 1973). As the plain-
ffs did not allege federal question jurisdiction
under 28 U.S.C. § 1331, their Fourteenth
Amendment claim does not stand apart from
their § 1983 claim. A'thouwh it should be clear,
we also note that since no purposeful or inten-
tional discrimination by the defendant was
proved, plainufts’ Fourteenth Anwudment and
§ 1983 causes of action could not have been
sustained under Washington.
Il. The 5 Foot, 7 Inch Height
Requirement
Among the other of defendants’ practices
challenyed by the plaintiffs was the 5’7”
height requirement. In Dothard v. Rawlin-
son, —— US. —-—, 97 S.Ct. 2720, 53
L.Ed.2 786 (1977), the Supreme Court held
that Title VII forbids the use of height
requirements which have discriminatory ef-
fect unless the employer meets “the burden
of showing that [the] requirement [has]
a manifest relation to the employ-
ment in question.” Jd. at 2726, quoting
Griggs v. Duke Power Co., 401 U.S. 424,
432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
[8] Here there can be no question that
the 5’7” height requirement has discrimina-
tory impact. The parties stipulated that
41% of the otherwise eligible Mexican-
American applicants are excluded by the
requirement." The defendants further
conceded that no scientifically approved
test has been utilized to determine whether
the height requirement is in fact job-relat-
ed. The only testimony in the record on
point is that of Chief Stanley E. Barlow,
himseif only 5’8”, who testified that he
believed a smal] man might have difficulty
13. In Part Ill of the opinion in Washington v.
Davis, the majority agreed with the district
court's conclusion that Test 21 had been suffi-
ciently validated by a validation study and oth-
er evidence showing a nexus between success
on the test and success in police training
school. 426 U.S. at 250-51 & n. 17, 96 S.Ct.
2049. It is at least arguable that by not requir-
ing the defendants to meet the job-relatedness
standards of Title VII, the Court implicitly held
that emplovers sucd under § 1981 may escape
liability by showine something less than job-re-
latedness. We need not addvess that question
here, since defendants’ proof not only is insuffi-
cient under Gnryys, but also falls far short of
the quality and quantity of proof offered in
Washington.
14. Of course, this continued threat to use the
1972 test as part of the selection process mght
up to the filing of the corapiaint in this case is
admittedly a violation of Title VIT.
15. We accordingly note thai the continuing use
of Us heist requirement constitutes a contin-
ving vielation of Tile Vii and provides a basis
for rehef tm addition to § 198}.
1342
working with taller men in removing long
ladders and other equipment and might
have a slower reaction time in climbing on
and off equipment. Chief Barlow conceded
that in the past firemen under 5'7” have
been able to function without impairment
due to their height."
[9] It seems clear to us that this testi-
mony falls far short,of validating a height
requirement which has a serious impact in
restricting Mexican-American employment
in the County Fire Department."” The dis-
trict court did not have the benefit of Do-
thard, supra, and, therefore, did not apply
the standard of proof required by that case.
The evidence introduced was inadequate to
meet the Dothard requirement that the
height restriction was manifestly related to
employment by the Fire Department. Ac-
cordingly, the district court's finding of job-
relatedness must be reversed.
Ill. Affirmative Relief
{10} The defendants contest the affirm-
ative relief ordered by the district court.
However, as this Court has noted,
“[t}here can be little doubt that where
a violation of Title VII is found, the court
is veste’ with broad remedial power to
remove vhe vestiges of past discrimina-
tion and eliminate present and assure the
non-existence of future barriers to the
full enjoyment of equal job opportunities
by qualified black workers.”
United States v. Ironworkers Local 86, 443
F.2d 544, 553 (9th Cir.), cert. denied, 404
U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971)
(citations omitted). We do not believe the
court lacks equal power under § 1981 to
order relicf. Indeed, “{iJn fashioning an
appropriate remedy for employment dis-
crimination, Congress has granted courts
plenary equitable power under both Title
Vil and section 1981." Pettway
v. American Cast Iron Pipe Co., 494 F.2d
16. These shorter firemen were employed dur.
ing World War Il whea the standard was re
laxed gad when fiscmen ef other ertves euto-
matically josmed the L.A. County Fire Depart.
ment when their employing cies were an-
nexed by L.A. County.
566 FEDERAL REPORTER, 2d SERIES
211, 243 (Sth Cir. 1974) (footnotes omitted).
Although the decided cases have primarily
invoived either Title VII or § 1983, and not
§ 1981, we feel the extensive case law un-
der both sections approving affirmative re-
lief is directly applicable here. We see no
reason to limit the relief available under
§ 1981 merely because in the past § 1981
and Title VII have been read in tandem.
See, e. g., Boston Chapter, NAACP, Ince. v.
Beecher, 504 F.2d 1017 (1st Cir. 1974), cert.
denied, 421 U.S. 910, 95 S.Ct. 1561, 43
L.Ed.2d 775 (1975); Franks v. Bowman
Transp. Co., 495 F.2d 398 (5th Cir. 1974)
modified, 424 U.S. 747, 96 S.Ct. 1251, 47
L.Ed.2d 444 (1976); Pettway v. American
Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.
1974); Johnson v. Goodyear Tire & Rubber
Co., 491 F.2d 1364 (Sth Cir. 1974). Similar-
ly, we note that Title VII and § 1983 cases
frequently have been cited as involving
analogous principles in fashioning equitable
relief, see Rios v. Enterprise Ass’n Steam-
fitters Local 638, 501 F.2d 622, 628 (2d Cir.
1974); Carter v. Gallagher, 452 F.2d 315,
329 (8th Cir. 1971) (en banc), cert. denied,
406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338
(1972), and cases involving one statute have
been cited in support of the relief ordered
in cases involving the other.
Eight Courts of Appeals, including this
one, have considered and approved the use
of accelerated hiring goals or quotas to
eradicate the effects of past discrimination.
See Boston Chapter, NAACP, Inc. v. Beech-
er, 504 F.2d 1017 (Ist Cir. i974), cert. de-
nied, 421 U.S. 910, 95 S.Ct. 1561, 45 L.Ed.2d
775 (1975) ($$ 1981 & 1983, Title VII); Rios
v. Enterprise Ass'n Steamfitters Local 638,
501 F.2d G22 (2d Cir. 1974) (Title VII);
United States v. Masonry Contractors Ass'n
of Memphis, Inc., 497 F.2d 871 (6th Cir.
1974) (Title VII); Franks v. Bowman
Transp. Co., 495 F.2d 398 (Sih Cir. 1974),
modified, 424 U.S. 747, 96 S.Ct. 1251, 47
L.Ed.2d 444 (1976) (Title VII); Morrow v.
17. Our earher comments with respect to valida-
tion of employment critenon chal'cogved under
§ isst are caee'iy applicable ut this content
See note 15, supe.
DAVIS v. COUNTY OF LOS ANGELES
1343
Cite as 566 F.2d 1334 (1977)
Cris'er. 491 F.2d 1053 (5th Cir.) (en banc),
cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42
|. Ed 2d 139 (1974) (§ 1983); Vulean Society
v. Civil Serv. Comm'n, 490 F.2d 387 (2d Cir.
1473) (§ 1983); Associated Gen. Contractors
of Mass., Inc. v. Altshuler, 490 F.2d 9 (1st
Cir. 1973), cert. denied, 416 U.S. 957, 94
S.Ct. 1971, 40 L.Ed.2d 307 (1974) (Title VII);
Pridgeport Guardians, Inc. v. Civil Serv.
Comm'n, F.2d 1333 (2d Cir. 1973)
(§§ 1981, 1983); United States v. N.L. In-
dus., Inc., 479 F.2d 354 (8th Cir. 1973) (en
banc) (§ 1983); Pennsylvania v. O'Neill, 473
F.2d 1029 (3d Cir. 1973) (en banc) (§ 1983);
United States v. Local 212, IBEW, 472 F.2d
634 (6th Cir. 1973) (Title VII); United
States v. Wood Lathers Loca! 46, 471 F.2d
408 (2d Cir.), cert. denied, 412 U.S. 939, 93
S8.Ct. 2773, 37 L.Ed.2d 398 (1973) (Title VII);
Castro v. Beecher, 459 F.2d 725 (lst Cir.
1972) (§ 1983); United States v. Carpenters
Local 169, 457 F.2d 211 (7th Cir.), cert.
deaied, 409 U.S. 851, 93 S.Ct. 638, 34 L.Ed.2d
94 (1972) (Title VII); Carter v. Gallagher,
452 F 2d 315 (8th Cir. 1971) (en banc), cert.
denied, 406 U.S. 950, 92 S.Ct. 2045, 32
L.Ed.2d 338 (1972) (§ 1983); United States
v. Ironworkers Local 86, 443 F.2d 544 (9th
Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447,
30.L.Ed.2d 367_{1971) (Title VII); Contrac-
tors Ass'n of Eastern Pa. v. Secretary of
Labor, 442 F.2d 159 (3d Cir.), cert. denied,
404 US. 854, 92 S.Ct. 98, 30 L.Ed.2d 95
(1971) (Title VII); United States v. Local
38, IBEW, 428 F.2d 144 (6th Cir.), cert.
denied, 400 U.S. 343, 91 S.Ct. 245, 27
L.Ed.2d 248 (1970) (Title VII); Local 53,
Asbestos Workers v. Vogler, 407 F.2d 1047
(5th Cir. 1969) (Title VII). While the de-
fendants argue § 703(j) of Title VII forbids
the imposition of racial quota hiring, even
were this to be an order premised solely on
Title VII, we note this view has been uni-
formly rejected by the many courts which
have considered the question.
{11] We believe the district court prop-
erly exercised ite discretion in ordering af-
firmative action to be undertaken to erase
18. fiuper v. Kloster, 486 F.2d 1134 (ith Cor.
1973) did rot held to the contrary, but upheld
the district court's refusal tu timpose quot is
the effects of past discrimination. We do
not believe that such relief may be limited
to the identifiable persons denied employ-
ment in the past—for “the presence of iden-
tified persons who have been discriminated
against is not a necessary prerequisite to
ordering affirmative relief in order to elimi-
nate the present effects of past discrimina-
tion.” Carter v. Gallagher, 452 F.2d at 330.
Nor are remedial goals limited to any
specific or prescribed form. The precise
method of remedying past misconduct is
left largely to the broad discretion of the
district court. Goals have been expressed
in terms of specific numbers or ratios
e or percentages .
Rios v. Steamfitters Local 638, 501 F.2d at
631 (citations omitted).
While we remand because the district
court expressly stated that the reason it
ordered identical accelerated hiring of
blacks and Mexican-Americans in equal rat-
ios was because of the validity of the 5'7”
height requirement, we do not necessarily
believe a 1-1-3 ratio was incorrect. The
court, however, should reconsider its order
in light of our decision that the 57” height
requirement is invalid and that plaintiffs
lacked standing to challenge defendants’
use of the 1969 written examination.
{12} The defendants finally argue that
the imposition of an affir:native order to
hire minority applicants is unnecessary.
They aryue in effect that they have already
commenced and that they can be relied
upon further to improve their hiring prac-
tices without the added impetus of a court
order. The experience of the Court of Ap-
peals for the Fifth Circuit is useful in this
regard—"“protestations or repentance and
reform aimed to anticipate or blunt the
force of a lawsuit offer insufficient assur-
ance that the practices sought to be en-
joined will not be repeated.” Rowe v. Gen-
eral Motors Corp, 457 F.2d 348, 359 (Sth
Cir. 1972); aceord, United States v. Oregron
State Medical Soe’v, 343 CS. 326, 253, 72
tw
S.Ct. tho, (6 Lobd. $78 (1$52). Here the
within the facts of that case as not bewmy an
abuse of discretion.
1344
record shows that the defendants had decid-
ed to use an unvalicated verbal! aptitude
test to hire new candidates in 1973 and that
the only reason the test was not used was
notice of this suit. The personnel director
of the defendants testified at length at the
trial and acknowledged that ne was aware
of the discriminatory impact such a test
that defendants had failed and refused to
take necessa:y affirmative steps to over-
come the department’s bad reputation in
black and Mexican-American communities.
We emphasize that this was not a close
case—in a community of 29.1% minority
population, only 3.3% of the firemen em-
ployed by defendants were black or Mexi-
can-American. These factors are hardly
persuasive evidence of the defendants’ good
faith, even were such good faith relevant in
fashioning relief."* We agree with the dis-
trict court that an accelerated hiring order
is the only way “to overcome the presently
existing effects of past discrimination with-
in a reasonable period of time.”
In sum, we believe the district court was
wholly justified in deciding to impose af-
firmative hiring orders upon the defend-
ants.™
While it should be obvious to all, we
nevertheless repeat the ~admonition that
nothing said by this Court is to be taken as
a requirement that the defendants hire any
unqualified applicant for the performance
of these essentia! jobs.
AFFIRMED in part, REVERSED in part
and REMANDED for further proceedings
not inconsistent with this opinion.
WALLACE, Circuit Judge, 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
19. In Griggs v. Duke Power Co., 401 U.S. 424,
91 S.Ct. 849, 28 L Ed.2d 158 (1971). a Title VII
case, the Supreme Court rejected pood faith as
adetense. “Congress directed the thrust of the
Act to the consequences of employment prec-
ices, not simply the motivation.” Jd. at 432,
566 FEDERAL REPORTER, 2d SERIES
principles upon which our society is built.
But even in rooting out such an evil prac-
tice, 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 twe of the three
would have. Farther, the trie! judee found ° 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 limita-
tion.
As to the remedy, I conclude that while
the plaintiffs may well have standing to
challenge the post-1971 hiring procedures,
there is a critica! 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 oc-
curred. Because the district 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 ques-
tion should be resolved in the first instance
by the trial judge, I would reverse and
remand for reconsideration of the appropri-
ate remedy in light of the limited standing
of the plaintiffs and the nature of the de-
fendants’ 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 distri-t court.
The issue comes to us by a curious route.
The plaintiffs phrase their request for relief
as follows:
91 S.Ct. at 8&4. We believe good furth is equal-
ly inapplicable to § 1981.
20. We do not read U'naed Air Lincs vo Evans,
431 US. 553, 97 St. 1885, 5! L.td2d 571
(1977) to restr t m any way the affirmative
rehef ordered in this case
DAVIS v. COUNTY OF LOS ANGELES
1345
Cite as 546 F.2d 1334 (1977)
The only modification of the Judgment
sought in this appeal is an increase of the
Mexican-American hiring ratio, such in-
crease to be ordered if there is a reversal
by this Court of Appeal of the District
Court’s conclusion of law that the height
standard is job-related and legal. Plain-
tiffs-appellants did not seek below and do
not seek on this appeal, an order enjoin-
ing the’use of the 57” height standard.
Since the plaintiffs do not contest the legal-
ity 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. Nore of
the named plaintiffs is alieged to be shorter
‘than 57”. 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 require-
ments is a minimum height of 5’7”, each of
them must be at least that tall. Conse-
quently, none of them have suffered an
injury-in-fact from the alleged discrimina-
tory 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 tal-
ler 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-Ameri-
cans in spite of it. These facts amply dem-
onstrate the necd for and the protection
built into standing requirements. Although
this lack of standing is obvious, it is not
even discussed by the majority.
Il. 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 |ct which was
the final product of an examiiction 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 rank-
ing 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-Ameri-
can despite the fact that those minorities
accounted for approximately 29.1 percent of
the population of Los Angeles County.'
These employment statistics are necessarily
the result of the defendants’ pre-1971 hiring
practices since no firemen were hired there-
after until the complaint was filed. But
the majority admits that the plaintiffs
lacked standing to challenge these prac-
tices. 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 un-
der these new procedures, they clearly have
standing to litigate their legality. Given
the limited scope of the claim, however, I
1. The district court found that 10.8 percent of the populution of Los Angeles County was
black and 18.3 percent Mexican-Amencan.
566 F24d—29
1346
question the appropriateness of the sweep-
ing injunctive relief granted.
The new procedures were to be as fol-
lows. 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 num-
ber of applicants interviewed. Thus a new
i 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 applican
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 equa! opportuni-
ty 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
aga'nst the county, charging that the ran-
dom selection process violated provisions of
the county charter-and civil service regula-
tions requiring that selection for oral inter-
views be made on merit. The county was
enjoined from using this method pending
trial on the merits. As a result, the exami-
nation process was halted for over two
years and no interviews or physical tests
were given and no eligibility list was certi-
fied.
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 Personne! proposed to inter-
view those applicants who had received the
top 544 scores on the 1972 written test. Of
this numbe., 492 were white, 10 black and
33 Mexican-American. These applicants
were not to be ranked on the basi. of the
test results, however, and the interviews
566 FEDERAL REPORTER, 24 SERIES
were not intended to eliminate the remain-
ing applicants from consideration. The
purpose was solely to expedite the hiring of
sufficient firemen to meet the immediate,
urgent requirements of the fire depart-
ment.
The plaintiffs herein objected to this pro-
posal. Upon learning of the complaint
about to be filed in this action, the Director
of Personnel abandoned the plan and imple-
mented 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 eligibili-
ty 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 conced-
ed by the plaintiffs that this examination
and ranking procedure did not have a dis-
criminatory 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 Mexi-
can-American participation rates and that,
to the contrary, several officials had en-
gaged in efforts designed to increase minor-
ity 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 discrimina-
tury cinployment practice OF ulostny as a
selection device non-validated written tests
that had a disproportionate detrimental im-
DAVIS v. COUNTY OF LOS ANGELES
1347
Cite as 566 F.2d 1334 (1977)
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
1972 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 con-
stitutes a Title VII violation” 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 prac-
tices 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 re-
quire proof of an improper purpose when a
discriminatory impact is alleged, Griggs v.
2. 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 stipula-
tion states that the defendants abandored their
plan to make a discniminatory use of the !972
exam on January 8, 1972. Title Vii is arguably
unavailable to the plaintiffs as a basis of liabili-
ty in this case. In that event, and in hght of
the subsequent analysis in the text, the defend-
ants would be absolved of all lability whatso-
ever. It appears, however, that the stipulated
date may be in error, and in addition 1 seems
to me that 3 persuasive arytement can be made
that the threat to use the 1972 eXamination ina
discriminatory manner can fairly be construed
as continuing after March 24, 1972. thus pro-
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
VIL.
The majority’s decision that section 1981
similarly requires no proof of intentional
discrimination is both unnecessary and un-
fortunate. The potential scope of section
1981 is exceptionally broad, going far be-
yond the Title VII realm of employment,
and conceivably reaching virtually all pri-
vate contractual arrangements. See Run-
yon 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,? the wiser course
would be to base the finding of liability on
that statute and to wait for a more appro-
priate 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 Four-
teenth Amendment—always rcquire proof
of discriminatory intent, or whether—as in
Title VII cases—proof of discriminatory im-
pact alone may be sufficient.‘ I agree.
But Washington v. Davis serves at least to
viding a legitimate basis for some relief to the
plaintiffs.
3. “[T)he remedies available to the individual
under Title VII are co-extensive with the in-
div {ijdual’s rghit to sue under the provisions of
the Civil Rights Act of 1866, 42 U.S.C. § 1931
* Johnson v. Railway Express Agen-
cy, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 1719,
44 L.Fd.2d 295 (1975), quoting H.R Rep. No.
92-238, 92nd Coreg. Ist Sess. 19 (1971).
4. As the majority notes in footnote 7 of its
opinion, few courts have had occssion to con
steue section TStoin hohe of Washioton vy.
Davis. Of those which have dealt with the
issug explicitly, most have cone so without
analysis, e. g., Ninsey v. Firsi Regional Secun-
1348
remind us that improper intent may be an
essential ingredient in some discrimination
cases where the lower courts have hereto-
fore thought otherwise. When it is neces-
sary to decide such cases on the basis of
authority other than Title VII or the Four-
teenth Amendment, therefore, a most care-
ful reconsideration of the role of discrimina-
tory intent is in order.
The majority reasons+that because both
Title VII and section 1981 apply to employ-
ment discrimination cases, because the rem-
edies 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 de-
cide that intentional discrimination is re-
quired under section 1981, “there remains
ties, Inc., 557 F.2d 820, 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 | have located that
shed any light on the problem support the posi-
tion 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 Chica-
no Police Officer's Ass’mmv. 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 [i. 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 1935, suggesting that the Su-
preme Court may well believe that constitu-
tional standards apply in section 1981 cases.
This is the interpretation placed on the Su-
preme Court's action by the Tenth Circuit pan-
el that originally decided Stover, as evidenced
by their treatment of the case on remand. Chi-
cano Police Officer's Ass'n v. Stover, 552 F.2d
918, 920 (10th Cir. 1977).
45. The majority's analysis is not helped by the
String of citations offered in support of the
propositions that section 1981 has been apphed
“to bar discrimination in empioyment,” and
that Title VII principles are a “benchmark” in
discrinunation cases The burden of these
cases is that section 1981 provides a cause of
action for private acts of employment ciscrimi-
nalion and that it was not implicitly repealed
566 FEDERAL REPORTER, 2d SERIES
no operational distinction in tiis context
between liability based upon Title VII and
section 1981.” This analysis is inadequate.$
That both statutes can apply to the same
facts and that both may afford similar rem-
edies is beside the point. The same can be
said of Tit! VII and the Fourteenth
Amendment, yet, after Washington v. Da-
vis, there remains an essential “operational
distinction” between them. The proper in-
quiry 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 VII. I
believe that the history of section 1981
strongly suggests precisely that.
Because section 1981 is peculiarly linked
to the Fourteenth Amendment, the stan-
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 opin-
ion in that case revived as a major factor in
discrimination law. The two post-Washington
v. Davis decisions, Flowers v. Crouch-Waiker
Corp., 552 F.2d 1277 (7th Cie. 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 dis-
cussed. 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 majonty, Wace v. Mississippi
Coop. Extension Serv., 528 F.2d 508 (Sth 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 implement-
ing Title VII"" and held that “[u}nder the law of
this circuit, public employment tests
are to be judged under a constituticnal stan-
dard in suits brought under’ 42 U.S.C.A.
§§ 1981, 1983." Id at 518 (emphasis added).
The court in Wade, although it had the fore-
sight 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 7, unavoidably
jacked the wisdom later supphed by Wash-
ington v. Davis that purposeful discrimination
is one element of the constitutions! standard.
But of interest here ts the Fitth Circunt’s recog-
nition that section 1951 tracks the Constitution,
not Title Vil, in its standards of proof.
DAVIS v. COUNTY OF LOS ANGELES 1349 ©
Cite as 566 F.2d 1334 (1977)
dards pertaining to that amendment shoul:
also control section 1981. Of course, Title
VII also depends in part upon the Four-
teenth Amendment for its validity.® Title
VII, however, was iytentionally structured
to rest upon a3 meny other constitutional
bases as possible.’ 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. A/fred
H. Mayer Co., 392 U.S. 409, 422, 437-38, 88
§.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 motiva-
tion 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
6. 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.
7. 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 Vil. The proposed bill was
expressiy madé to rely upon |
the exercise by Congress of the powers con-
ferred upon it to reguiate the manner of hold-
ing Federal Elections, to enforce the provi-
sions of the fourteenth and fifteenth amend-
ments, to regulate commerce among the sev-
eral States. and to make laws necessary and
proper to execute the powers conferred upon
it by the Constitution.
H.R.Doc. No. 124, 88th Cong., Ist Sess 14
(1963). That the present version of Title VII
rests on more than the Civil Rights Amend-
ments may also be seen in the deliberate inclu-
sion of interstate commerce concepts in Title
VII's definitions, signifying a reliance upon the
Commerce Clause 42 USC. § 2000e(b) (e),
(g) & th). Cf Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 249 50, 85 S.Ct.
348, 13 LEd.2d 258 (1964) (Title I of Civil
Rights Act of 1964 valid under the Commerce
Clause).
Several courts of appeals. inchiny our own,
have found that Tith Vil extends beyond the
reach of the Equa! Protection Clause. & zg,
Berg v. Richmond Uniticd School Dist, 528
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 legisla-
tive history demonstrates that its precise
purpose was to implement the congressional
powers created by that Amendment. /d.
The significance of this is that section
1981 enjoys a unique historical and concep-
tual relationship to the Fourteenth Amend-
ment which is not shared by Title VII.*
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 discrim-
inatory intent is consistent with the Su-
F.2d 1208, 1212 n.8 (9th Cir. 1975), cert. grant-
ed, 429 U.S. 1071, 97 S.Ct. 806, 50 LEd. 2d 788
(1977), Satty v. Nashville Ges Co., 522 F.2d
850, 855 (6th Cir. 1975), cert. granted, 429 U.S.
1071, 97 S.Ct. 806, 50 LEd2d 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). Al-
though the holdings in these cases that the
exclusion of pregnant women from certain in-
surance and other employment benefits have
been underinined or put in doubt by General
Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401,
50 LEd.2d 343 (1976), the Gilbert decision it-
self does not question the itea that Tithe Vil
invokes congressional powers bevond those de-
rived from the Fourteenth Amendment. Rath-
er, Gilbert simply holds that the exclusion of
pregnancy benefits from an employer's disabilt
ty insurance plun does not con ‘titute a sex-
based discrimination capable of invoxmeg ether
Title Vil or the Fourteenth Amendment. Id. at
136, 97 S.Ct. 401.
8 As Runyon v. McCrary, 427 U.S. 160, 96 S.Ct.
2586, 49 L.Ed 2d 415 (1976), makes clear, sec-
tron 1981 is also very closely tied to the Thir-
teenth Amendment. Washirgton v. Davis did
not decide whether discrmnatory invent ts re-
quired m Thirteenth? Amendment cases. I
think that it is, but any uncertain'y in thts
asstumption merely ua formcotes thet the miapot
ity’S Gatsion to delve mto section 1951 is un-
wise
1350
preme Court's statement in Jones v. Alfred
H. Mayer Co., supra, that Congress intend-
ed section 1 cf the Civil Rights Act of
1866—the source of what is now section
' 1982 as weil a2 one source of section 1981—
“to prohibit a/! racially mctivated depriva-
tions of the rights enumerated in the stat-
ute . . ..” Id. 392 US. 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 protect-
ed by section 1 “by reason of his color or
race.” 14 Stat. 27°
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 stat-
ute; together with its accompanying ad-
ministrative regulations it identifies with
particularity the conduct it proscribes and
imposes a course of administrative remedies
that must be exhausted before the jurisdic-
tion 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 elimi-
nate 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 Four-
teenth Amendment, is the required demon-
stration of discriminatory intent.
9. In addition, the original draft of the 1866 Act,
as introduced by Senator Trumball of Minos,
prohibited “discrimination in civil mphts or im-
munities . . on account of race, color, or
previous condition of slavery ” MMe-
Donald v. Santa Fe Trail Transp. Co., 427 US.
273, 288, 96 S.Ct. 2574, 2562, 49 LEd 2d 393
(1976) (emphasis odded).
10. In Washington v. Davis, the plawtiffs did
plead section 1981 The defendants here argue
566 FEDERAL REPORTER, 2d SERIES
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 of-
ten be to circumvent the holding in Wash-
ington 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. See Croker v. Boeing Co., 437
F.Supp. 1138 (E.D.Pa. 1977).
Finally, an observation made by the Su-
preme Court in Washington v. Davis is rele-
vant here. The Court was concerned about
the problems that might arise if the Four-
teenth Amendment could be invoked upon a
mere showing of disproportionate racial im-
pact:
A rule that 2 statute designed to serve
neutral ends is nevertheless invalid, ab-
sent compelling justification, if in prac-
tice it benefits or burdens one race more
than another would be far reaching and
would raise serious questions about, and
perhaps invalidate, a whole range of tax,
welfare, public service, regulatory, und
licensing statutes that may be more bur-
densome to the poor and to the average
black than te the more affluent white.
Given that rule,’ such consequences
would perhaps be likely to follow. How-
ever, in our view, extension of the rule
beyond those areas where it is already
applicable by reason of statute, such as in
the field of publie employment, should
await legis!ative prescription.
that in that dec:sion section 198] was imphicitly
held to require a showing of discruanatory
intent. The plaintiffs argue that the oppusite
implication exists. Both sides have a certain
lovical basis, but a close reading of the Su-
preme Court's open convinces me, as it does
the majority, that Washington v. Davis sunply
does not consider the standards po. erning sec-
ties PSI.
Pes Se 5
DAVIS v. COUNTY OF LOS ANGELFS
1351
Cite as 546 F.2d 1334 (1977)
426 U.S. at 248, 96 S.Ct. at 2051 (footnote
omitted) Section 1981, extending as it does
far beyond “the field of public employ-
ment” to the expansive realm of both public
and private contractual relationships, might
well precipitate many of these same conse-
quences if proof of discriminatory intent is
not required.
For these reasons I would base defend-
ants’ liability for the use of the 1972 exami-
nation of Title VII alone. The majority's
reliance on section 1981 is ill-advised be-
cause 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 de-
fendants’ use of the 1972 written test re-
sults, however, that violation does not nec-
essarily 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:
Congress did not intend by Title VII,
however, to guarantee a job to every
person regardless of qualifications. In
short, the Act does not command that any
person be hired simply because he was
formerly the subject of discrimination, or
because he is a member of a minority
group. Discriminatory preference for
any group, minority or majority, is pre-
cisely and only what Congress has pro-
scribed. What is required by Congress is
the removal of artificial, arbitrary, and
unnecessary barriers to employment
when the barriers operate invidiously to
Il. 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 ra-
cial discrimination in private employment
against white persons as wel! as against non-
whites). Cf Franks v. Bowman Transp. Co.,
424 U.S. 747, 780-81, 96 S.Ct. 1251, 47 L.Fd.2d
444 (1976) (Burger, C. J, concurring and dis-
senting) (white employees injured by awa:d of
retroactive seniority to nonwhites may peiition
for equitable relief on their own behalf, Webor
v. Kaiser Alum. & Chem Corp, 415 & Supp.
761 (E.D La. 1976) (Title Vil prohibits discvm-
hauion against white employees; private em-
pluyment context).
discriminate on the basis of racial or oth-
er impermissible classification.
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 pro-
portions of those minorities in the popula-
tion of 10.8 percent and 18.3 percent. Im-
position 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, Hungar-
ian-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 dis-
crimination against certain groups, the pos-
sible prejudicial effects upon others must be
weighed carefully by the district court.”
In civil rights cases, “[a]s with any equity
case, the nature of the violation determines-
the scope of the remedy.” Swann v. Char-
lotte-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
accur’tely the nature of the violations that
have occurred. Here, the district judge be-
lieved he had properly found the defendants
liable not only for their thwarted attempt
to use the 1972 exam resuits in a discrimi-
natory manner, but also for their use in
earlier years of the examinations which ae-
tually produced the racial imbalance in the
fire department's work force. It is obvious
that the quotas were imposed to remedy
that racial imbalance,!* and thus that in
1 agree, of course, thet equitable relief to
rectify past discrinunation will often impose
burdens on those innocent of any discriminato-
ry aciivity. Franks v. Bowrnan Transp Co..
supra, 424 U.S. at 773-79, 96 S.Ct. 1251. But,
as | explain in the subsequent text, relief appro-
priate to the vious. on in this case requires the
ImMposition of no such burdens.
12. In his conclusions of law, the district judge
Stated.
{{}t appears that unites: Cie Court orders ac-
celerated hiring at the Los Angeles County
Fire Department, there will not be sufficient
hiring of Blacks and Mexican- un. ricans as ts
necessary to overcome the presently exiting
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 abséfce of standing on the
part of any plaintiff to contest the earlier
procedures makes them legally indistin-
guishable 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:
A discriminatory act which is not made
the basis for a timely charge is the legal
equivalent of a discriminatory act which
occurred before the statute was passed.
It may constitute relevant background
evidence in a proceeding in which the
status of a current practice is at issue,
but separately considered, it is merely an
unfortunate event in history which has no
present legal consequences.
Id. at 558, 97 S.Ct. at 1889." Therefore, the
district court was not entitled to treat the
pre-1972 examination procedures as sub-
stantive violations to be corrected, but only
as “relevant background” to the narrow
issues properly before him.
Moreover, even if the pre-1972 examina-
tions could be properly considered by the
district judge as background, their relation-
ship to the defendants’ Title VII violation
militates against taking them heavily into _
effects of past discrimination within a rea-
sonable period of time .
(Emphasis added).
13. 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 plaimtiff
with standing could probably not have shown
them to be illegal. Since Tithe VU fust became |
applicable to the defendants on Mareh 24,
1972, hability for the defendants’ conduct pre-
vious to that date must be evaluated under
566 FEDERAL REPORTER, 2d SERIES
account. The remedial obligation of the
district court was first and foremost to
grant relief for the violations of law proper-
ly 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 em-
ployment practices.” Griggs v. Duke Pow-
er 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 discriminato-
ry impact. The plaintiffs concede in their
brief that in fact “the post-March 1972 dis-
crimination . . had no ‘effects.’”
Because the racial imbalance of which the
plaintiffs complain was neither aggravated
nor perpetuated by the defendants’ actiona-
ble discrimination, the liability of defend-
ants for that limited threat of discrimina-
tion does not create a proper platform from
which to reach back to correct the racial
imbalance.
Even under the majority’s view of this
case, a remand is essential. Had the dis-
trict 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 ma,ority now sus-
tains. It is conceded that the only objec-
tionable “use” of a written examination by
the defendants was their intent to narrow
the field of applicants to the top 544 scorers
section 1981. But that statute, as I explain
above, appears to require prooi of a discrimina-
tory intent, and the distact judge explicitly
found as a matter of fact that such intent was
lacking here.
14. “At the threshold we observe that Title VI
speaks only to the future. The only justitrca-
tion for a backward gaze is in deterertiing
whether a present employment prortice muy,
in fact, perpetusie past discrimimation.” EROU
v. University of N. M, 504 F.2d 1296, 1301
(10th Cir, 1974).
JACOBSON v. TAHOE REGIONAL PLANNING AGCY.
Cite as 566 F.2d 13523 (1977)
on the 1972 exam. This plan was made
only after an apparently nondiscriminatory
system (interviewing randomly selected ap-
plicants 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 discrimi-
natory practices.
In light of these facts, I would reverse
and remand to the district court for recon-
sideration of the appropriateness of quotas
in this case."* It is clear to me that the
court can fashion an effective order prohib-
iting any discriminatory use of the 1972
examination directly without imposing quo-
tas.
1353
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Van Davis, et al., }
Plaintiffs-Appellants,
= No. 73-3008
County or Los ANGELES, et al., etc.,
Defendants-Appellees.
iI
Van Davis, et al., OPTNEOR
Plaintiffs-A ppellecs, |
vs.
| No. 73-3009
County or Los ANGELES, ¢t al., ete.,
Defendants-Appellants. }
[October 20, 1976]
Appeal from the United States District Court
for the Central District of California
Before: TUTTLE,* HUFSTEDLER and WALLACE,
Circuit Judges.
TUTTLE, Cirenit Judge: » Se
This suit was b behalf of all past, present and
future black and Mexican-American applicants for positions as
firemen with the Los Angeles County Fire Department, alleging
that the defendants Los Angeles County, the Board of Super-
visors of the County and the County Civil Service Commission had
been guilty of past discrimination in hiring in violation of the
Fourteenth Amendment, the Civil Rights Act of 1866, 42 U.S.C.
*Honorable Elbert P. Tuttle, Senior United States Cireuit Judge,
Fifth Cireuit, sitting by designation.
2 Van Davis, et al. vs.
§§1981, 1983 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000e ef seq."
The district court found that the L.A. County Fire Depart-
ment employed blacks and Mexican-Americans grossly out of
proportion to their number in the population of L.A. County.
The court further found that the Fire Department, despite its
admitted knowledge of its prior discriminatory practices and its
bad reputation as an employer in the minority community, failed
to undertake any effective positive steps to eradicate the effects
of prior discrimination. Accordingly the court ordered acceler-
ated hiring of racial minorities in a ratio of one black and onc
Mexican-American applicant hired for each five white applicants
hired until the effects of past discrimination had been erased.?
Despite the fact that the Mexican-American population of
L.A. County was approximately double the size of the black
population, the district court ordered identical accelerated hiring
due to its finding that the Fire Department's 5 foot, 7 inch
height requirement for job applicants was a valid requirement
for employment, and that this height requirement had the effect
of climinating 45% of the otherwise cligible Mexican-American
applicants from consideration.
The plaintiffs appeal the trial court’s finding that the 5’7”
height requirement is valid and could therefore be used in limit-
ing the relief available to the Mexican-American members of the
plaintiff class. The defendants cross-appeal the trial court’s order
of accelerated hiring. We affirm the district court’s order of
accelerated hiring to cure past racial discrimination; we disagree
with the court’s determination that the 5’7” height requirement
has been sufficiently validated by the defendants, and aeccord-
ingly we reverse and remand for reconsideration of the proper
ratio of accelerated racial hiring to be ordered.
1Jurisdiction was based on 28 U.S.C. §1343. The additional allega-
tions of racial discrimination in promotions were abandoned prior to
trial.
2Data introduced by the plaintiffs showed that this 1-1-5 ratio, given
the present rate of new hiring, would produce a work foree of minority
firemen in proportion to the number of minority persons in the work-
force by 1979 for blacks and 1983 for Mexican-Americans.
County of Los Angeles, et al., etc. 3
I. PROCEDURAL DEFENSE
Despite a minority population of approximately 29.1% in L.A.
County, only 3.3% of the firemen employed by the defendants
were black or Mexican-American at the time of trial. The defend-
ants do not, and indced cannot, dispute the trial court’s finding
that these data establish a prima facie ease of racial diserimina-
tion. This Court has recognized that such statisties can prove
past racial discrimination. [’nited States v. Ironworkers Local 86,
443 F.2d 544, 550 (%h Cir. 1971) cert. denied 404 US. 984
(1971). Unable to contest the indisputable legal effect of these
data, the defendants pose a number of procedural defenses all
involving the claim that whatever discriminatory practices they
might have been guilty of in the past have been ended. Specifically
the defendants argue: (1) that the plaintiffs lacked standing to
assert the interests of the class aggrieved by past discriminatory
practices; (2) that the discriminatory practices complained of
oceurred prior to March 1, 1972, the date on which Title VII
became applicable to cities and municipalities; and (3) that the
discriminatory practices complained of occurred prior to the
three year statute of limitations on the plaintiffs §§1981 an
1983 claims.‘ )
These three arguments are all based on the same undisputed
fact: the last time the defendants administered a test to job
8The cases holding that statistics alone may prove a prima facie
ease of racial diserimination in employment, thereby shifting the burden
to the defendants to justify the racial imsbalanee, are by this time
legion. See, ¢.g., United Statos v. Hayes International Corp., 456 F.2d
112 (5th Cir. 1972); Rowe v. General Motors Corp., 457 F.2d 348 (5th
Cir. 1972); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974); United States v. N.L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973); United States v. Masonry Contractors Ass’n., 497 F.2d
871 (6th Cir. 1974).
‘The plaintiffs do not dispute the fact that Title VII beeame ap-
plicable to municipalities on March 1, 1972. See 42 U.S.C. §2000e(a).
‘Nor do they dispute the fact that their §§1981 and 1983 claims are
' governed by the state three year statute of limitations. See Mills v.
Small, 446 F.2d 249 (9th Cir. 1971) cert. denied 30 L.Ed.2d 543 (1971).
Beeanse plaintiffs’ complaint was filed on January 11, 1973, the oe-
eurrences complained of must have happened subsequent to January
11, 1970.
2
4 Van Davis, et al. vs.
applicants which had discriminatory effect was August 1969.5
Thus because none of the class representatives in this suit were
unsuccessful applicants in 1969, and because the test was admin-
istered prior to the three-year eut off for the §§1981 and 1983
claims, and well before March 24, 1972, aceordingly the defend-
ants argue their past discriminatory actions cannot give rise to
eurrent liability. The district court found that the past diserim-
inatory acts had continuing effect,** thereby justifying present
relief. We agrec. In our view the defendants claim that because
the 1969 examination was «dministered in 1969 it accordingly
had effect only in 1969 is manifestly incorrect.
The 1969 examination was administered to a large group of
applicants; the successful applicants who seored well on this
examination and in the subsequent interview were certified as
cligible candidates, and were placed on an eligibilty list for
later employment as vacancies occurred in the ranks of the fire-
5The defendants do not dispute the fact that this verbal aptitude
test had discriminatory impact, and could not be validated under the
requirements of Griegs v. Duke Power Co., 401 U.S. 424 (1971). Of the
244 blacks who took this test, 5 were hired; of the 100 Mexican-
Americans, 7 were hired, while of the 1080 whites taking the test, 175
were hired. Thus while approximately 25% of the applicants were black
or Mexican-American, based on the results of this test only 6.4°% of the
5*The trial court’s Finding No. 6 contains the following language :
“The accelerated hiring to be ordered by the court is based on all
findings, including the following considerations :
(b) It is in the public interest to »ecelerate the elimination of the
racial imbalance at the Los Angeles County Fire Department caused by
the past discrimination of defendants.
(ce) It appears that unless the court orders accelerated hiring at the
Los Angeles County Fire Department there will not be sufficient hiring
of blacks and Mexiean-Americans as is necessary to overcome the
presently existing effects of past discrimination within a reasonable
period of time.”
Conelusion of Law No. 7 says:
“In order to eliminate the effects of past discrimination against
blacks avd Mexican-Americans, those effects Leing the currently
existing racial imbalance in the workforce of the Los Angeles
County Fire Department, it is appropriate and constitutional to
order the Defendants to enzaze in the hiring of blacks and Mexiean-
Americans on an accelerated basis as set forth in the Judgment
herein. . . .” (Emphasis supplied).
County of Los Angeles, et al., ete. 3D
men. The parties stipulated approximately 100 such vacancies
oceur each year. 187 applicants were placed on the eligibility list
following the 1969 examination. Based on these facts, the district
court found that the examination had effect past 1969, and we
think this was certainly correct. While the plaintiffs failed to
show that any candidate on this list was hired after March 24,
1972, it is obvious that most were hired after January 11, 1970.
Thus despite the failure of the plaintiffs to prove that specific
discriminatory acts occurred during the effective period covered
by Title VII, it is clear that discriminatory hiring did take place
within the three years prior to their §§1981 and 1983 claims.*
The defendants further argue that the district court lacked
jurisdiction under either $§1981 or 1983. As to §1983 the de-
fendants are clearly correct. A municipality is not a “person”
suable under §19837 and thus the three municipal defendants
are not subject to suit under $1983. Monroe v. Pape, 365 US.
167 (1961); City of Kenosha v. Bruno, 412 U.S. 507 (1973). No
individual defendants were named in the suit, and thus the
plaintiffs §1983 claim is barred. §1981 is not subject to the
same jurisdictional limitations: the language of the statute does
not require that a defendant be a “person” before suit may be
6We do not consider the plaintiffs’ additional arguments that such
factors as the defendants’ bad reputation in the minority community
or nepotistie word-of-mouth reeruiting and counselling may, alone, eon-
stitute sufficient discriminatory practices as to establish a valid Title
VII claim. The evidence on ihese points was extremely impressionistic
and the district court did not rely on these theories.
742 U.S.C. §1983 provides:
“Every person who, under color of any statute . . . of any state...
subjects . . . any citizen of the United States .. . to the depriva-
tion of any rights . . . seeured by the Constitution and laws, shal!
be liable to the party injured in any action at law, suit in equity,
or other proper proceedings for redress.” (emphasis added )
SIndividuals may be sued in their official capacity. See Harper v.
Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973); United Farmworkers
of Florida Housing Project, Ine. v. City of Del Ray Beach, Florida, 493
F241 799, 802 (Sth Cir. 1974); Sterzing v. Fort Bend Independent
School District, 496 F.2d 92, 93 n.2 (5th Cir. 1972). As the plaintiffs
did not allege federal question jurisdiction under 28 U.S.C. 61331,
their Fourteenth Amendment claim does not stand apart from their
§1983 claim.
6 Van Davis, et al. vs.
brought.® Indeed, $1981 speaks only of the rights of the person
denied the opportunity to make a contract due to his color—it
doesn’t attempt to specify who may be sued under its provisions.
The construction the Supreme Court placed on the term “person”
in Monroe v. Pape and City of Kenosha v. Bruno as it is used
in §1983 was based entirely on the legislative history of that
section, which was passed by the Congress entirely separately
from §1981. In our view the statutory construction of §1983's
use of a specific word does not constitute a blanket prohibition
against civil rights suits against municipalities based on other
code sections which don’t even contain the same limiting lan-
guage.1°
In our view there is no operational distinction in this case
between liability based on Title VIT and $1981. §1981 has been
construed to bar discrimination in employment by everv Circuit
which has considered the question. Waters v. Wisconsin Steel
Works of International Harvesters Co., 427 F.2d 476 (7th Cir.
1970), cert. denied 490 U.S. 911 (1970); Sanders v. Dobbs
ITouses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied 401
U.S. 948 (1971); Young v. International Tel. & Tel. Co., 438
F.2d 757 (3d Cir. 1971); Brady v. Bristol-Meyers, Ine., 459
F.2d 621 (Sth Cir. 1972): Brown v. Gaston County Dyeing
Machine Co., 457 F.2d 1377 (4th Cir. 1972); Macklin v. Spector
Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973); Long v.
942 U.S.C. $1981 provides:
“All persons within the jurisdiction ot the United States shall have
the same right in every state . . . to make and enforce contracts
. enjoved by white citizens. . . .”
19Arunga v. Weldon, 469 F.2d 675 (9th Cir. 1972) might be read as
applying the jurisdictional limits of §1983 to all civil rights sections.
This two paragraph per curiam does not explain the reasons for such a
holding, if that was in faet the basis for the holding, and we are re-
Inectant to infer such a broad and sweeping holding from it. After
cirenlating this opinion among all the members of this Court, this
panel has been authorized to announce that to the extent this opinion
is ineonsistent with Arunga, this latter opinion is the preferred view of
the majority of the members of this Court, as stated in Sethy v.
Aln»meda Co. Water District, F.2d _ (9th Cir., en bane, 1976)
(No. 73-1852 et seq. slip op’n Sept. 30, 1976.)
County of Los Angeles, et al., etc.
Ford Motor Co., 496 F.2d 500 (6th Cir. 1974). This line
of authority is so well-established the defendants do not even
attempt to dispute the applicability of $1981 to employment dis-
crimination. We join the seven other Circuits which have consid-
ered the question and hold §1981 is available as a remedy
against employment discrimination based on color.
Accordingly, we believe the distriet court properly found the
defendants guilty of employment discrimination. Despite the fact
they conceded that the discriminatory effects of the verbal apti-
tude test they used were known even prior to the giving of the
examination in 1969, the results of this examination had con-
tinued discriminatory effect as the 187 applicants hired after
1970 were employed on the basis of their suecess with the test.
The defendants thus practiced discrimination in hiring whieh
extended into the three year span subject to liability based on
the plaintiffs’ §1981 claim. As the named plaintiffs were appli-
eants for positions during this period, the fact that thev had not
previously applied in 1969 is irrelevant, and accordingly they
were proper elass representatives.
Il. THE 5 FOOT, 7 INCH HEIGHT
REQUIREMENT
Among the practices of the defendants which the plaintiffs
challenged was the 5’7” height requirement. In @rigas rv. Duke
Power Co., 401 U.S. 424 (1971) the Supreme Court unanimously
held that Title VII forbids the use of employment tests whieh
have discriminetory effect unless the employer meets “the burden
of showing that any given requirement [has]... a manifest
relation to the employment in question.” 401 U.S. at 432. This
burden arises only after the challenger proves that the tests in
question have the effect of selecting applicants for employment
or promotion in a racial pattern signifieantly different from that
11Se¢ gencrally Comment, Racial Discrimination and Employment
Under the Civil Rights Act of 1866, 36 U.Chi.L.Rev. 615 (1969):
ITerbert and Reischel, Title VII and the Multiple Approaches to
Fliminating Employment Discrimination, 46 V.¥.17.L. Rev. 449 (1971);
Peck, Remedies for Racial Diserimination in Employment. 46 Wash.
Rev. 495 (1971); Larson, The Development of Section 1981 as a Remedy
for Racial Discrimination in Private Employment, 7 Harv. Rights—
Civ. Lib. L. Rev. 56 (1972).
s Van Davis, et al. vs.
of the pool of applicants. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). Discriminatory tests are im-
permissible unless shown “by professionally acceptable methods,”
Albemarle Paper Co. v. Moody, 43 LW 4880, 4888 (1975) to
be “predictive of or significantly correlated with important
elements of work behavior which comprise or are relevant to the
job or jobs for which candidates are being evaluated.” 20 C.F.R.
$1607.4(¢), EEOC Guidelines.'?
Here there can be no question that the 5’7” height recuire-
ment has diseriminatory impact. The parties stipulated that
45° of the otherwise eligible Mexiean-American applicants are
excluded by the requirement.'? The defendants further conceded
that no scientifically approved test has been utilized to deter-
mine whether the height requirement is in facet job related. The
only testimony in the record on point is that of Chief Stanley
KE. Barlow, himself only 5’8”, who testified that he believed a
smaller man might have diffieulty working with taller men in
removing long ladders and other equipment, and might have a
slower reaction time in climbing on and off equipment. Chief
Barlow conceded that in the past firemen under 5’7” have been
able to function without impairment due to their height."
It seems clear to us that this testimony falls far short of
validating a height requirement which nad a serious impact in
restricting Mexican-American employment in the County Fire
12These EEOC Guidelines were recently approved by the Supreme
Court in Albemarle Paper Co. v. Moody, 43 LW 4880 ( 1975) as
providing standards by which employment requirements may be vali-
dated.
13We accordingly note that the continuing use of this height require-
ment would constitute a continuing violation of Title VIT and would
provide a basis for relief under that section even were §1981 not
available. We do not snggest that the validation requirements of Title
VII and §1981 are ditferent, however. We believe Title VII validation
standards may also be applied in §1981 cases.
14These shorter firemen were employed during World War TI when
the standard was relaxed, and when firemen of other cities automatically
ioined the L.A. County Fire Department when their employing cities
were annexed by L.A. Connty.
County of Los Angeles, et al., etc. 9
Department. The district court erred in finding that the County
had proven that the height requirement was job related.'5
Ill. AFFIRMATIVE RELIEF
The defendants contest the affirmative relief ordered by the
district court. As this Court has noted,
“There can be little doubt that where a violation of Title
VII is found, the court is vested with broad remedial power
to remove the vestiges of past discrimination and eliminate
present and assure the non-existence of future barriers to
the full enjoyment of equal job opportunities by qualified
black employces.”
United States v. Ironworkers Local 86, 443 F.2d 544, 553 (9th
Cir. 1971) cert. denied 404 U.S. 984 (1971). We do not believe
the court lacks equal power under §1981 to order relief.
“In fashioning an appropriate remedy for employment dis-
crimination, Congress has granted courts plenarv equitable
power under both Title VII. . . and section 1981.”
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 243
(5th Cir. 1974). Although the decided cases have primarily
involved either Title VIT or §1983, and not §1981, we do feel
the vast case law under both sections approving affirmative relicf
is directly applicable here. No other case we have found has
involved the same odd factual pattern where only §1981 is avail-
able to remedy employment discrimination, and we see no reason
to limit the relief available under $1981 merely beeause in the
past §1981 and Title VII have been read in tandem. See, ¢.¢.,
Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st Cir.
1975), cert. denied ... U.S. ... (1975); Pettway v. American
Cast Tron Pipe Co., supra; Frenks v. Bowman Transportation
Co., 495 F.2d 398 (5th Cir. 1974); Johnson v. Goodyear Tire
and Rubber Co., 491 F.2d 1364 (5th Cir. 1974). Similarly we
15Similar height requirements have been recently struck down in other
eases. See, Fox v. Washington, 43 LW 2468 (D.D.C. 4/22/75); Hardy
v. Stumpf, 37 Cal. App. 3d 958 (1974). Castro v. Beecher, 459 F.2d
72h (1st Cir. 1972) upheld a height requirement for firemen, but
only beeanse the plaintiffs had failed to prove diseriminatory impact
upon Puerto Rican applicants.
10 Van Davis, et al. vs.
note that Title VIT and §1983 cases have freyuently been cited
as involving analogous principles in fashioning equitable relief.
See Carter v. Gallagher, 452 F.2d 315, 329 (Sth Cir. 1971)
(en bane reversing in part panel opinion, 452 F.2d 315) cert.
denied 406 U.S. 950 (1972); Rios v. Enterprise Assn. Steam-
fitters Lo. al 638, 501 F.2d 622, 628 (2d Cir. 1974), and cases
involving one statute have been cited in support of the relief
ordered in cases involving the other.
Eight cireuits, including this one, have considered and ap-
proved the use of accelerated hiring goals or quotas to eradi-
eate the effects of past discrimination under either Title VIT
or §1983. United States v. Ironworkers Local 86, 443 F.2d 544
(9th Cir. 1971) cert. denied 404 U.S. 984 (1971) (Title VIT);
Boston Chapter, NAACP v. Beecher, 504A F.2d 1017 (1st Cir.
1974) (§§1981, 1983 and Title VIT); Ries v. Futerprise Assn.
Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974) (Title VIT);
United States v. Masonry Contractors Assn., 497 F.2d 871 (6th
Cir. 1974) (Title VII); Franks v. Bowman Transportation (Co.,
495 F.2d 398 (5th Cir. 1974) (Title VII): Morrow v. Crisler,
491 F.2d 1053 (5th Cir. 1974) (en bene) (81983; Associated
General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d
9 (Ist Cir. 1973) affirming 361 F.Supp. 129 (D. Mess. 1973)
cert. denied 416 U.S. 957 (1974) (Title VII): Vuleon Society
v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973)
($1983); Bridgeport Guardians, Inc. v. Civil Service Commis-
sion, 482 F.2d 1333 (2d Cir. 1973): United States v. NL. Incus-
tries, Inc., 479 F.2d 354 (Sth Cir. 1973) (Title VIT); Confrac-
tors Assn. of Eastern Pennsylvanma v. Sec. of Labor, 442 F.2d
159 (3d Cir. 1971) cert. denied 404 U.S. 854 (1971) (Title
VII); Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973)
(en banc) (§1983); United States v. Local 212, IBEW, 472 F.2d
634 (6th Cir. 1973) (Title VIL); United States v. Wood, Wire
and Metal Lathers International Union Local 46, 471 F.2d 408
(2d Cir. 1973) cert. denied 412 U.S. 989 (1973) (Title VII):
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) (§1983); United
States v. Carpenters Local 169, 457 F.2d 210 (7th Cir. 1972)
cert. denied 409 U.S. 851 (1972) (Title VIL); Carter v. Gal-
lagher, 452 F.2d 337 (Sth Cir. 1971) (en bene) cert. denied 406
U.S. 950 (1972) ($1983); T’nited States v. IREW Local 28, 428
F.24 144 (6th Cir. 1970) cert. denied 400 US. 948 (1970)
County of Los Angeles, et al., etc. ll
(Title VII); Local 53, Asbestos Workers v. Vogler, 407 F.2d
1047 (5th Cir. 1969) (Title VII)."° While the defendants argue
§703j of Title VII forbids the imposition of racial quota hiring,
even were this to be an order premised on Title VII, we note
this view has been uniformly rejected by the many courts which
have considered the question.
We believe the district court properly exercised its diseretion
in ordering affirmative action to be undertaken to erase the
effects of past discrimination. We do not believe that such relief
may be limited to the identifiable persons denied employment in
the past—for “the presence of identified persons who have been
discriminated against is not a necessary prerequisite to ordering
affirmative relief in order to eliminate the present effects of past
discrimination.” Carter v. Gallagher, supra, 459 F.2d at 330.
“Nor are remedial goals limited to any specifie or pre-
seribed form. The precise method of remedying past miscon-
duct is left largely to the broad diseretion of the district
court. Coals have been expressed in terms of specifie numbers
or ratios . . . or percentages.”
Rios v. Enterprise Assn. Steamfitters Local 638, supra, 501 F.2d
at 631. While we remand because the district court expressly
stated that the reason it ordered identical accelerated hiring of
blacks and Mexican-Americans in equal ratios was because of the
validity of the 5’7” height requirement, we do not necessarily
believe a 1-1-1 ratio was incorrect (indeed, it was the relief
originally requested by the plaintiffs), but the court should
reconsider its order in light of our decision that the 5’7” height
requirement is invalid.
The defendants finally argue that the imposition of an affirm-
ative order to hire minority applicants is unnecessarv. They
argue in effect that they have already commenced and that thev
ean be relied upon further to improve their hiring practices
withont the added impetus of a court order. Certainly the experi-
ence in the Fifth Cireuit is useful in one regard—“protestations or
1SHarper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) did not hold to
the contrary, but upheld the district court’s refusal to order the im-
position of quotas within the facts of that case as not being an abuse
of diseretion.
12 Van Davis, et al. vs.
repentance and reform timed to anticipate or blunt the for-e of
a lawsuit offer insufficient assurance that the practices senght to
be enjoined will not be repeated.” Rowe v. General Motors Corp.,
457 F.2d 348, 359 (5th Cir. 1972). Tiere the reeerd shows that
the defendant had decided to vse a similar verbal aptitude test
to hire new candidates in 1973, but that this decision was revoked
only upon being notified that this suit was to be filed. “he Per.
sonnel Director of the defendants testified at lenzth at the tria!
—and he acknowledeed that as carly as 1969 he was severe of
the diseriminatery impact of the aptitude test, and that ho had
recommended changes in reerujiment. but thet nothing was done
on these recommendations. He further testisted that the only ve.
sen the aptitude test wesn't used in 1973 was due te this srit,
This record hardly supports the view that loft to their own
deviees the defendants will devise on ffirmative action program
as effective as that of the district court's. We emphasized that
this was not a close case, in the sense that the disproportion
between minority candidates hired and the preportion of minority
persons in the L.A. community was not erossly out of preor.
tion. In a community of 28.50% minority population, only 3.56
of the candidates hired were Macks or Mexican-Americans. These
data are hardly persuasive evidence of the defendants’ eowl faith
—ven were such good faith relevant in fochienine relief.17
In sum, we believe the district court was wholly justifed jy;
deciding to impose affirmative hiring orders upon the deferda:'.
While it should be obvious to all, we pevertheless repent the
admonition that methine said by this court is to he taken n« a
requirement that the defendants hire anv unqualified ann). ant
for the performanes of these esseutial ihe.
AFFIRMED in part and PEVERSED in part and PE.
MANDED for reconsideration not inconsistent with this oninion.
In Grices v. Duke Power Co., 401 U.S. 424, 432 (1971), a Title
VIT ease, the Supreme Court rejected ood faith as a defense—
“Comwrress directed the thrust of the Act to the consequences of the
cmplovment practices, aot siaply the motiation.” We believe «rw
frith is equally inapplicable to §1981.
County of Los Angeles, et al., ete. 13
WALLACE, Cireuit Judge, Dissenting:
I respectfully dissent.
Discrimination in employment based upon race, erced or color
is a practice inconsistent with the views and aspirations of nearly
all Americans and elearly 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’ chal-
lenges to two of the three alleged illegal employment practices
are barred by such a jurisdictional limitation: the named plain-
tiffs have no standing to attack the defendants’ pre-1971 hiring
procedures or the height limitation. While the plaintiffs may
nevertheless have standing to challenge the post-1971 proeedures,
I question whether the imposition of minority hiring quotas is
warranted given the limited scope of this issue. Because this is
a question which should be resolved in the first instanee by the
trial judge, however, I would reverse and remand for reconsidera-
tion of the appropriate remedy in light of the limited standing of
the plaintiffs in this case.
I. Standing to Challenge the Pre-1971 Written Tests
The district court held and the majority affirms that the
plaintiffs made out a prima facie case of employment discrimina-
tion by proving that at the time the complaint was filed in
1973, only 3.3 pereent of the firemen employ.d by the defendants
were black or Mexican-American despite the fact thac those
minorities aceounted for approximately 29.1 percent! of the
population of Los Angeles County. These employme.. statistics
are necessarily the result of the defendants’ pre-1971 hiring
practices since no firemen were hired thereafter until the com-
plaint was filed. As the undisputed evidence showed, however,
these procedures were abandoned in 1971 in an effort to correct
the fire department’s racial imbalance. None of the named plain-
tiffs made application before October 1971. Given these facts,
the standing question is simple. Even in cases of racial dis-
crimination, a showing of injury in fact or threat of injury
'The district eourt found that 10.8 percent of the population of Les
Angeles County was black and 18.3 percent Mexican-American.
14 Van Davis, et al. vs.
in facet from the allegedly illegal conduct is necessary in order
to find standing. Moose Lodye No. 107 v. Irvis, 407 U.S. 163,
166-68 (1972). Neither named plaintiffs nor members of the
plaintiff class have suffered or were threatened with any injury
in fact from the pre-October 1971 hiring procedures and thev
therefore have no standing to litigate the legality of those
procedures,
The majority attempts to surmount this standing problem by
arguing that the effects of the pre-1971 proceedures continued
until after the plaintiffs applied for employment in October
1971. I cannot accept this argument.
The villain of the pre-1971 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 inter-
views. A total seore was given cach applicant, with the dis-
eriminatory written test having a 35 pereent 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 prodnee a
new eligibility list.
The last of these examination processes was initiated in 1969
by the administration of the discriminatory written test. The
majority at page 4, ante, states that the distriet eourt found that
the “1969 examination had continuing effect.” The district court's
Findings of Fact and Conclusions of Law do not support the
majority’s statement. The district court’s language, fairly read,
establishes what no member of the panel disputes: discrimination
in 1969 and years prior thereto resulted in a “currently existing
racial imbalance in the workforee of the Los Angeles County
Fire Department.’? That language does not establish that the
discriminatory 1969 examination, or any prior diseriminatory
practice, adversely affected or “injured in fact” any of the
named plaintiffs in their efforts to seeure employment. Further,
it is apparent from the first page of the Findings of Fact and
— — eee
_ — ———ee ee ee
*See footnote 5a of the majority opinion.
County of Los Angeles, et al., etc. 15
Conclusions of Law that they were prepared by the attorneys
representing the class plaintiffs. Thus, even if there were a find-
ing as suggested by the majority, a careful examination of the
record must be made to determine whether it would be supported.
See United States v. El Paso Natural Gas Co., 376 U.S. 651,
656-57 (1964); Nissho-Iwai Co. v. Star Bulk Shipping Co., 503
F.2d 596 (9th Cir. 1974).
The supposed continuing effect of the 1969 examination appar-
ently stems from the belief that the pool of applicants produced
by this examination somchow affected the named plaintiffs’
chances of being hired. However, the evidence does not support
such a finding, even if made. I find nothing in the reeord
indicating how many firemen were hired in the years 1970-72.
There is a stipulation that there normally are 100 firemen hired
per year. There is also testimony that the 1969 examination
produced a 187-applicant cligibility list. But there were no find-
ings made on hirings.
These facts may support a finding (if made) that some firemen
were hired from the 1969 test list after January 11, 1970, and
obviate the statute of limitations problem. But projections from
these facts do not support a finding (which was never made)
that any applicants from the 1969 examination list were hired
after October 1971 when the named plaintiffs applicd or, more
importantly, after the January 1972 test when they became
eligible for oral interviews and eventual certification for appoint-
ment. Indeed, assuming 100 hirings per year, the 187-applicant
1969 list would have been exhausted some time in early 1971.
The only other evidence in the record, though meager, supports
this view of the facts. First, Mr. Nesvig, the Los Angeles County
Personnel Director, was asked why in December 1972 they
decided to interview only the top 544 scorers on the 1972 test
even though\they knew that would have a disproportionate
detrimental effect on minorities. His response was: “We were
desperate, in my opinion. ... We had geue for almost two years
[i.e., sinee carly 1971] with many vacancies ... .” Later, Mr.
Barlow, Chief Deputy Engineer and the number two man in the
Los Angeles County Fire Department, was asked why they had
not had any affirmative action since 1971. His response: “We
did not have a list to hire off of. and our first class off of this [the
16 Van Davis, et al. vs.
current] list, which examination [meaning the entire process
from initial application to eligibility list] started in 1971, .. .
was not started until April 9 [1973].”
Thus I think it clear that the pre-1971 procedures had no
impact on the named plaintiffs in this ease. They therefore have
no standing to challenge those proeedures and the district court
did not have jurisdiction to consider the results of those
examinations.
Il. The Challenge to the Post-1971 Procedures
As noted above, prior to acecpting 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 the
legality of these procedures. Given the limited seope of the claim,
however, I question the appropriateness of the sweeping injune-
tive relief granted.
The new procedures were to be as follows. Written tests were
to be eliminated as a ranking device, but beeause 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 sereening
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 devier and gave every passing
applicant an equal opportunity to be chosen for an oral interview.
Ninety-seven pereent 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.
After administration of the written test, 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 serviee regulations
requiring that selection for oral interviews be made on merit.
The county was enjoined from using this method pending trial
County of Los Angeles, et al., etc. 17
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 inereased, the county fire department urged that
the applicants, who by this time had been waiting for almost
18 months, be interviewed and an cligibility 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. The applicants were not to be
runked on the basis of the test results, however, and the inter-
views were not intended to climinate 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 pro-
ecdure whereby all of the passing applicants would be inter-
viewed. The interviews commenced on January 20, 1973.
The plaintiffs filed this civil rights action naming as defend-
ants the County of Los Angeles, the Board of Supervisors of the
county and the Civil Service Commission. The complaint alleged
racial diserimination in violation of 42 U.S.C. §§ 1981 and 1983.
The defendants completed interviewing all of the applicants by
the end of March 1973 and certified an eligibility list. Of the
ft top 315 applicants on this list, 210 were white, 39 black, 59
Mexican-American and 7 of other races (a total of 33.5 percent
minorities). It was conceded by the plaintiffs that this examina-
tion and ranking procedure did not have a discriminatory impact
on blacks and Mexican-Americans.
At the conclusion of the trial, the distriet 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 }
18 Van Davis, et al. vs.
practices with a willful or conseious purpose of exeluding blacks
and Mexican-Americans from employment.
The court concluded, however, that the defendants had failed
to take the necessarv affirmative action to overeome the existence
in the minority community of a diseriminatory reputation and
had engaged in the discriminatory employment practice of
utilizing as a selection device non-validated written tests that had
a disproportionate detrimental impact on blacks and Mexiean-
Americans. I agree with the majority that the subjective dis-
eriminatory reputation of the fire department cannot be the
basis of a valid section 1981 elaim.
The challenge to the use of the 1972 written test as a selection
device is appropriate under section 1981. The claim is not
mooted by the decision, prompted by the filing of this lawsuit.
not to use the written test as a svlection deviee but instead to
interview all the applicants. United States v. W.T. Grant Co.,
345 U.S. 629, 632-33 (1953). There is nothing per se wrong
with written employment tests: violation of section 1981 occurs
only when the test is found to have a disproportionate detri-
mental impact on a minority group and has not been sufficiently
validated as reasonably related to job performanee. Sce Griggs v.
Duke Power Co., 401 U.S. 424 (1971). Ilere, the district eourt
found that the 1972 test violated the Griggs standard and T
cannot conclude that the finding was clearly erroncous.
Even if the plaintiffs have established a section 1981 violation
with respect to the defendants’ use of the 1972 written test
results, however, that violation «ives not neeessarily 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:
Congress did not intend by Title VIL [and inferentially by
section 1981], however, to guarantee a job to every person
regardless of qualifications. In short, the Act does not
command that any person be hired simply heeause he was
formerly the subject of diserimination, or beeause he is a
member of a minority group. Diseriminatory preference for
any group, minority or majority, is preeisely and only what
Congress has proseribed. What is required by Congress is
the removal of artifieial, arbitrary, and unnecessary barriers
County of Los Angeles, et al., etc. 19
to employment when the barriers operate invidiously to dis-
eriminate on the basis of racial or other impermissible
classification.
Id. at 430-31.
In this ease the trial judge ordered that 20 pereent of all
newly-hired firemen be black and that 20 percent be Mexican-
American, compared to the respective proportions of those mi-
norities in the population of 10.8 percent and 18.3 percent.
Imposition of this hiring quota may well result in diserimina-
tion against cqually or better qualified applicants solely on
account of their race. Here, for example, a native American
Indian, Asian-American, ITungarian-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 on others must be weighed closely by the
district court.’
Thus, in a reeent case very similar
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