# Petition — County of Los Angeles v. Davis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0957%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 625 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0957%3A01. Public record. Not legal advice.