Appendix — County of Los Angeles v. Davis
Supreme Court brief1979
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Suprerie Court, U. $.
FILED
APPENDIX SEP5 1978
aa ~» CLERK
IN THE
Supreme Court of the United States
October Term, 1978
No. 77-1553
County OF Los ANGELES; BOARD OF SUPERVISORS OF
THE COUNTY OF Los ANGELES; and CiviIL SERVICE
COMMISSION OF THE COUNTY OF LOS ANGELES,
Petitioners,
VS,
VAN Davis, HERSHEL CLADy and FRED VEGA, individu-
ally and on behalf of all others similarly situated,
Wittig C. Bursey, ELIJAn 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.
On Writ of Certiorari to the United States Court
of Appeals for the Ninth Circuit.
PETITION FOR CERTIORARI FILED APRIL 28, 1978.
CERTIORARI GRANTED JUNE 19, 1978,
INDEX
Appendix A. Second Amended Complaint for In-
junction in Connection With Employment Prac-
tices of Los Angeles County, Pursuant to Rule
23, FRCP, Dated April 16, 1973 -........... App. p.
Appendix B. Answer to Second Amended Com-
plaint for Injunction in Connection With Em-
ployment Practices of Los Angeles County,
FF ee
Appendix C. Pre-Trial Order, Filed June 5, 1973
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Appendix D. Findings of Fact and Conclusions of
Law of the United States District Court, Central
District of California, in “Van Davis, et al. v.
County of Los Angeles, et al.”, Filed July 18,
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Appendix E. Judgment of the United States Dis-
trict Court, Central District of California, in “Van
Davis, et al. v. County of Los Angeles, et al.”,
Filed July 20, 1973
Appendix F. Opinion of the United States Court
of Appeals for the Ninth Circuit in “Van Davis, et
al. v. County of Los Angeles, et al.” (Unreport-
ed), Filed October 20, 1976
Wallace, J., Dissenting
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Appendix G. Opinion on Rehearing of the United
States Court of Appeals for the Ninth Circuit in
“Van Davis, et al. v. County of Los Angeles, et
al.” Reported in 566 F.2d 1334 (Dec. 14, 1977),
Rehearing Denied Jan. 30, 1978
Wallace, J., Dissenting
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IN THE
Supreme Court of the United States
October Term, 1978
No. 77-1553
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CouNTYy 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, individu-
ally and on behalf of all others similarly situated,
Wittize 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.
On Writ of Certiorari to the United States Court
of Appeals for the Ninth Circuit.
APPENDIX
APPENDIX A.
Second Amended Complaint for Injunction » Connec-
tion With Employment Practices of Les Angeles
County, Pursuant to Rule 23, FRCP.
United States District Court, Central District of Cali-
fornia.
Van Davis, Hershel Clady and Fred Vega, individual-
ly 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. Amparan, individually and on
behalf of all others similarly situated, Plaintiffs, vs.
County of Los Angeles; Board of Supervisors of the
County of Los Angeles, and Civil Service Commission
of the County of Los Angeles, Defendants.
1. Jurisdiction. The jurisdiction of this Court is
invoked pursuant to Title 28, U.S.C. §1343(3)(4),
this being a suit in equity to redress the deprivation
under color of law, custom, or usage of rights guar-
anteed and secured by the Fourteenth Amendment to
the United States Constitution, by 42 U.S.C. §§1981
and 1983, and by Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§2000e, et seqg., which prohibit
discriminatory employment practices based on race,
color, or national origin. Attached to this Second
Amended Complaint as Exhibits “A” and “B” are
true and correct copies of the “right to sue” letter
required by 42 U.S.C. §2000e-5(f)(1) and the charge
filed by Plaintiffs with the Equal Employment Oppor-
tunity Commission.
2. Defendant County of Los Angeles. Defendant
County of Los Angeles is a governmental subdivision
a on
of the State of California, established pursuant to the
laws and Constitution of the State of California. The
Los Angeles County Government performs many func-
tions as an administrative agent of the State of Cali-
fornia, including the provision of fire prevention and
fire protection services in certain fire districts located
within the geographical boundaries of Los Angeles
County. These services are performed by Defendant
County of Los Angeles through its fire department,
known as the Los Angeles County Fire Department.
Defendant County of Los Angeles employs approxi-
mately seventy thousand persons including approximate-
ly nineteen hundred firemen; of these nineteen hundred
firemen approximately nine are black and approximately
forty-one are Mexican-American.
3. Defendant Board of Supervisors of the County
of Los Angeles. Defendant Board of Supervisors of the
County of Los Angeles (hereinafter “Board of Super-
visors”) is an elected governmental body created by
and operating pursuant to the laws of the State of
California and the Charter of the County of Los
Angeles. Defendant Board of Supervisors is the Chief
rning body of the Los Angeles County Government,
and among other duties, is responsible generally for
policy decisions concerning the activities of
the Fos Angeles County Fire Department.
Defendant Los Angeles County Civil Service
Commissian. Defendant Los Angeles County Civil Serv-
ice Commission (hereinafter “Civil Service Commis-
sion”) is a governmental body created by and operating
pursuant to the laws of the State of California and
the Charter of the County of Los Angeles. Its members
are appointed by Defendant Board of Supervisors. De-
fendant Civil Service Commission is a quasi-independent
ted
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agency generally responsible for establishing and main-
taining the personnel rules and regulations affecting
employees of Los Angeles County, including Los An-
geles County firemen.
5. Firemen Plaintiffs. Plaintiffs Van Davis and Her-
shel Clady are black citizens of the United States.
Plaintiff Fred Vega is a United States citizen who
is Mexican-American. Plaintiffs Davis, Clady, and
Vega (“Firemen Plaintiffs”) are employed by Defend-
ant County of Los Angeles as firemen in the Los
Angeles County Fire Department. Plaintiffs Davis,
Clady, and Vega have been employed as firemen for
approximately 19 years, 3 years, and 13 years, respec-
tively, and bring this action on behalf of themselves
and on behalf of a class composed of all persons
who are either black or Mexican-American and who
presently are or will become employed as firemen by
the County of Los Angeles.
6. Applicant Plaintiffs. Plaintiffs Bursey, Harris,
Smith, Clady, Haynes, Tucker, Aubry, Crawford,
Heard, Baltazar, Amparan (“Applicant Plaintiffs”) are
either black or Mexican-American citizens of the United
States who applied for employment as Los Angeles
County firemen in 1971, who, in January 1972, took
a written examination for that job, and who currently
are listed on an eligibility list of persons seeking
appointments as Los Angeles County firemen. These
eleven Plamtiffs bring this action on behalf of them-
selves and on\behalf of a class composed of all persons
who are either black or Mexican-American and who
are current or future applicants for employment as
Los Angeles County firemen.
7. Classes Represented. Members of each of the
classes On whose behalf plaintiffs suc are so numerous
ovine
that joinder of all such members is impracticable. There
are common questions of law and fact affecting the
rights of the members of each of the classes. The
claims of the named plaintiffs are typical of the claims
of the classes they represent, and Plaintiffs will fairly
and adequately protect the interests of the classes they
represent. The prosecution of separate actions against
Defendants by individual members of the represented
classes would create a risk of inconsistent or vary-
ing adjudications which would establish incompatible
standards of conduct for the Defendants. Defendants
have acted and have refused to act on grounds generally
applicable to the classes Plaintiffs represent, thereby
making appropriate preliminary and final injunctive
relief in favor of Plaintiffs and the classes they repre-
sent.
8. Illegal Practices. Defendants and each of them
have for many years pursued employment practices
that illegally discriminate against black and Mexican-
American firemen and black and Mexican-American
applicants for positions as Los Angeles County firemen.
Defendants have implemented these illegal practices,
among other ways, by:
(a) engaging in nepotistic and “word-of-
mouth” recruitment procedures, at least until 1969,
which operated to perpetuate the virtually all-
white work force of the Los Angeles County Fire
Department.
(b) utilizing written tests as a promotion and
hiring selection device, despite the fact that such
written tests are culturally biased and have a
a
severely disproportionate detrimental impact upon
black and Mexican-American applicants as com-
pared to whites, and despite the fact that such
written tests have not been shown to be required
by the needs of the Los Angeles County Fire
Department nor related to or predictive of job
performance as firemen.
(c) utilizing oral examinations as a hiring se-
lection device, despite the fact that such oral ex-
aminations were administered almost exclusively
by whites and had a disproportionate detrimental
impact upon black applicants, despite the fact
that the officials of Defendant agencies who ad-
minister and score the oral examinations had no
objective instructions or standards by which to
administer the oral examinations, and despite the
fact that the oral examinations have not been
shown to be predictive of job performance.
(d) utilizing other procedures, practices, quali-
fications, tests, standards, and selection devices
in recruitment and hiring which have a dispro-
portionate detrimental impact upon black and
Mexican-American applicants as compared to
whites and which never have been shown to be
predictive of job performance as firemen.
(e) refusing to take appropriate action to cor-
rect the effects of past racially discriminatory pol-
icies and practices.
9. Cessation of Certain Illegal Practices. As a direct
result of the filing of the original complaint herein
on January 11, 1973, and only because of such filing,
Defendants altered their previous plans and ceased
to utilize the culturally biased written examination form-
cules
erly utilized as a ranking device in selecting firemen
applicants. Defendants, instead, turned to oral inter-
views as the sole procedure for ranking applicants;
as a consequence, for first time in Defendants’ history,
the ranking procedure used for selecting firemen did
not have a disproportionate detrimental impact upon
black and Mexican-American applicants. Due to the
change in selection procedures, a substantial number
of minorities have been placed at or near the top
of the eligibility list of current applicants for hire
as Los Angeles County firemen, with the result that,
subject to medical examinations now being carried out,
it is anticipated that there will be approximately thirty-
three minority persons among the first class of inductees
which wili total sixty persons.
10. Continuation of other Illegal Discriminatory
Practices. Although Defendants have ceased to utilize
the discriminatory written examination, and although
approximately 33 out of the first class of sixty inductees
probably will be minority persons, Defendants have
not stopped all of their discriminatory practices relative
to the Los Angeles County Fire Department. Most
importantly, Defendants have failed and continue to
refuse to take steps which would, within a reasonable
time, eliminate the presently existing effects of past
discrimination. Defendants have refused and continue
to refuse to make commitments to overcome past dis-
crimination in future years on future examinations,
and future eligibility lists. More immediately, in the
240 slots on the current eligibility list which follow
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the top sixty slots, said 240 slots being those from
which future classes of inductees will be selected, there
are relatively few blacks and Mexican-Americans and
certainly not a number of such minorities as would
be sufficient to overcome the presently existing effects
of Defendants’ past discriminatory practices.
11. JIrreparable Injury. Unless preliminary and per-
manently enjoined, Defendants may reinstitute the
discriminatory practices described above in paragraph
9, and will continue the other discriminatory practices
described above in paragraph 8 and 10 of this Amended
Complaint. Plaintiffs will be irreparably injured thereby
and have no adequate remedy at law.
12. Necessity of Preliminary Injunction. Applicant
Plaintiffs and the class they represent will be irreparably
injured unless Defendants are preliminarily enjoined
from continuing to refuse to take those steps necessary
to overcome the present effects of past discrimination
as that failure relates to induction of the classes of
fireman trainees to be inducted from the current eligibil-
ity list subsequent to the first class of sixty trainees;
in particular the applicant Plaintiffs will be injured
irreparably unless Defendants are preliminarily enjoined
from failing and refusing to appoint or hire, in those
subsequent classes of firemen trainees, a sufficient num-
ber of black and Mexican-American fireman trainees
on an accelerated basis as is necessary to overcome
the effects of past discriminatory practices based on
race and national origin.
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13. Civil Rights Violated. The above-described dis-
criminatory employment practices based on race and
national origin constitute a violation of those portions
of the Civil Rights Act of 1866 found at 42 U.S.C.
§1981, for which violation Defendants are liable in
an action in equity under 42 U.S.C. $1983. In addition,
the above-described discriminatory employment prac-
tices deprive Plaintiffs and the classes they represent
of rights guaranteed by the Fourteenth Amendment
to the Constitution of the United States, and by Title
VII of the Civil Rights Act of 1964, 42 U.S.C. Sections
2000e et seq.
WHEREFORE, Plaintiffs pray that Defendants and
each of them and their officials, agents, employees,
and all persons in active concert or participation with
them be preliminarily and permanently enjoined from
engaging in any discrimii.atory employment practices
based on race or national origin relating to the Los
Angeles County Fire Department, and specifically from:
a. Failing or refusing to recruit blacks and
Mexican-Americans for jobs as Los Angeles Coun-
ty firemen on an equal basis with whites.
b. Utilizing written tests, oral examinations,
and other selection devices or standards concerning
hiring which disproportionately exclude blacks and
Mexican-Americans from jobs as Los Angeles
County firemen and which are not predictive of
job performance.
c. Failing or refusing to eliminate written tests,
oral examinations, or other selection devices or
standards used for promotion purposes in the Los
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OP EF OEE we De
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Angeles County Fire Department which have a
disproportionate detrimental impact upon blacks
and which have not been shown to be predictive
of job performance.
d. Failing or refusing to establish valid prac-
tices, procedures, qualifications, tests or other
devices and standards which would prevent con-
tinuing discrimination in recruitment, hiring, and
promotion of Los Angeles County firemen.
e. Failing or refusing to take appropriate meas-
ures to overcome the present effects of past dis-
criminatory policies and practices, including the
following affirmative steps:
(1) conducting a recruitment program designed
to inform the black and Mexican-American com-
munities of employment opportunities available
in the Los Angeles County Fire Department.
(2) hiring sufficient black and Mexican-Ameri-
can applicants for jobs as firemen on an accele-
rated basis as is mecessary to overcome the
presently existing effects of past discriminatory
employment practices based on race and na-
tional origin.
(3) providing monetary compensation to black
and Mexican-American applicants and present
firemen for the monetary losses they have suf-
fered as a result of Defendants’ failure and
refusal to hire and employ them on an equal
basis with whites.
(4) taking such other reasonable action as is
necessary to overcome the present and future
effects of past discriminatory actions and prac-
tices.
ye
aniiiue
Plaintiffs further pray that this Court grant
such other and further relief as the interests of
justice require, including Plaintiffs’ costs and dis-
bursements herein and Plaintiffs’ reasonable at-
torneys’ fees.
MARY D. NICHOLS
CARLYLE W. HALL, JR.
JOHN R. PHILLIPS
BRENT N. RUSHFORTH
FREDRIC P. SUTHERLAND
/s/ By Mary D. Nichols
Mary D. Nichols
Attorneys for Plaintiffs
DATED: April 16, 1973.
eulitlen
APPENDIX B.
Answer to Second Amended Complaint for Injunction
in Connection With Employment Practices of Los
Angeles County.
United States District Court, Central District of Cali-
fornia.
Van Davis, et al., Plaintiffs, vs. County of Los
Angeles, Board of Supervisors of the Conty of Los
Angeles, and Civil Service Commission of the County
of Los Angeles, Defendants. Civil No. 73-63-WPG.
Filed: 4-26-73.
Come now defendants COUNTY OF LOS AN-
GELES, BOARD OF SUPERVISORS OF THE
COUNTY OF LOS ANGELES, and the CIVIL SERV-
ICE COMMISSION OF THE COUNTY OF LOS
ANGELES and answering the Second Amended Com-
plaint herein admit, deny or allege as follows:
1. Defendants admit the allegations of paragraph
1 of the Second Amended Complaint, without conceding
that a cause of action is stated in that. plaintiffs have
the right to maintain this action.
2. In answer to the allegations of paragraph 2,
defendants admit the allegations of said paragraph, ex-
cept those relating to the composition of the Los An-
geles County Fire Department. In this regard defendants
specifically allege that there are presently 1,844 firemen
employed by the County of Los Angeles, of which
9 are black and 59 are Mexican-American.
3. Defendants admit the allegations of paragraphs
3 and 4 of the Second Amended Complaint.
4. Defendants admit the allegations of paragraph
5, without conceding, however, that said class action
niin
may properly be maintained by the plaintiffs named
therein.
5. In answer to paragraph 6, defendants deny that
plaintiffs STEPHEN HAYNES and JAMES HEARD
applied for employment as Los Angeles County firemen.
Defendants further deny that plaintiff ALFRED R.
BALTAZAR is currently listed on the eligibility list
of persons seeking employment as Los Angeles County
firemen. Except as so denied, the defendants admit
the other allegations of said paragraph without con-
ceding, however, that said class action may properly
be maintained by the plaintiffs named therein.
6. Defendants deny, conjunctively and disjunctively,
each and every allegation of paragraph 7 of the Second
Amended Complaint.
7. In answer to the allegations of paragraph 8,
defendants deny, generally and specifically, conjunctive-
ly and disjunctively, each and every allegation of said
paragraph and its sub-paragraphs. In regard to said
allegations, the defendants allege tuat the defendants
have taken affirmative action since at least 1970 to
correct any racial imbalance in the fire department
and to recruit for hire as firemen blacks, Mexican-
Americans, and other minorities.
8. In answer to the allegations of paragraph 9,
defendants admit that the present examination pro-
cedure for selecting firemen is not discriminatory and
does not have a disproportionate, detrimental impact
upon black and Mexican-American applicants, and fur-
ther admit that through the current examination pro-
cedures a substantial number of minorities have been
placed at or near the top of the eligibility lists of
current applicants for hire as Los Angeles County
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firemen. Defendants specifically deny that as a direct
result of, and only because of the filing of the original
Complaint herein, that they have altered their previous
plans or examination procedures. Defendants further
specifically deny that at any time their examination
procedures had a disproportionate detrimental impact
on black and Mexican-American applicants.
9. In answer to the allegations of paragraph 10,
the defendants admit that they do not utilize a dis-
criminatory written examination and that approximately
33 out of the first class of 60 hired probably will
be minority persons. Except as so admitted, the defend-
ants deny generally and specifically, conjunctively and
disjunctively, each and every allegation of said para-
graph.
10. In answer to the allegations of paragraphs
11, 12, and 13, the defendants deny generally and
specifically, conjunctively and disjunctively, each and
every allegation of said paragraphs.
FIRST AFFIRMATIVE DEFENSE
As a first, separate and affirmative defense, the
defendants allege that plaintiffs’ Complaint fails to state
a claim upon which relief can be granted under 42
U.S.C. 1981 and 1983.
SECOND AFFIRMATIVE DEFENSE
As a second, separate and affirmative defense, the
defendants allege that plaintiffs’ Complaint fails to state
a claim upon which relief can be granted under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. section
2000e, et seq.
—"
THIRD AFFIRMATIVE DEFENSE
As a third, separate and affirmative defense, the
defendants allege that plaintiffs’ Complaint fails to state
a claim upon which relief can be granted under 42
U.S.C. 1981 and 1983, in that the named defendants
are not “persons” within the scope of that statute,
and therefore are not the proper parties against whom
such a suit may be brought.
FOURTH AFFIRMATIVE DEFENSE
As a fourth, separate and affirmative defense, the
defendants allege that said action under 42 U.S.C.
1981 and 1983 is barred by the applicable statute
of limitations because the alleged discriminatory acts
occurred more than three years immediately prior to
the filing of the Complaint herein.
FIFTH AFFIRMATIVE DEFENSE
As a fifth, separate and affirmative defense, the
defendants allege that said action under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. section 2000e,
et seq., is barred because said alleged discriminatory
acts occurred prior to the date that said statute became
effective and applicable to the defendants herein,
to wit, March 24, 1972.
SIXTH AFFIRMATIVE DEFENSE
As a sixth, separate and affirmative defense, the
defendants allege that plaintiffs had notice of all of
the facts and acts of the defendants set forth in the
Complaint and nevertheless refrained from commencing
this action until January 11, 1973, to the prejudice
of the defendants and plaintiffs have thereby been
guilty of such laches as should in equity bar the plain-
tiffs from maintaining this action.
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SEVENTH AFFIRMATIVE DEFENSE
As a seventh, separate and affirmative defense, the
defexidants deny that the persons the plaintiffs purport
to represent as a class do in fact constitute a single
class, and further deny that said plaintiffs are members
of the class they purport to represent.
EIGHTH AFFIRMATIVE DEFENSE
As an eighth, separate and affirmative defense, de-
fendants allege that the relief sought herein in the
nature of the hiring of black and Mexican-American
applicants for jobs as firemen on an accelerated basis
is unjustified under the facts herein, is contrary to
the law, violates the Los Angeles County Civil Service
regulations, and would constitute, if implemented, not
only a violation of the due process clause of the United
States Constitution, but also the provisions of 42 U.S.C.
1981 and 1983, and the Civil Rights Acts of 1964,
42 U.S.C. section 2000e, et seq. in regard to future
applicants as firemen, who are not blacks and Mexican-
Americans.
WHEREFORE, defendants pray that the preliminary
and permanent injunctions prayed for by the plaintiffs
be denied, that plaintiffs take nothing in this action,
and that defendants be awarded their costs of suit
herein, and such other and further relief as the Court
deems proper.
JOHN H. LARSON
Acting County Counsel
/s/ by William F. Stewart
WILLIAM F. STEWART
Deputy County Counsel
Attorneys for Defendants
entities
APPENDIX C.
Pre-Trial Order.
United States District Court, Central District of Cali-
fornia.
Van Davis, et al., Plaintiffs, vy. County of Los An-
geles, et al., Defendants. Civil Action No. 73-63-WPG.
Counsel for the Parties to this action have met
together to prepare this proposed order, which is hereby
submitted for the Court’s approval.
Attached hereto are the following schedules for
use in the trial of this case:
(1) Joint Statement of Issues to be Tried;
(2) Stipulated Facts;
(3) Plaintiffs’ Statement of Material Facts and Rele-
vant Law;
(4) Defendants’ Statement of Material Facts and
Relevant Law;
(5) Plaintiffs’ Witness List;
(6) Defendants’ Witness List;
(7) Plaintiffs’ Exhibit List;
(8) Defendants’ Exhibit List;
(9) Plaintiffs’ Concise Statement as to Relief
Sought;
(10) Intervenor’s Concise Statement as to Relief
Sought;
(11) Intervenor’s Witness List;
The parties, through their attorneys, agree that they
are bond by the Statement of Issues to be Tried and
the Stipulated Facts as set forth in the attached Sched-
ules “(1)” and “(2)”. The parties also agree that
the other Schedules, number “(3)” through “(10)”,
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although not strictly binding on the parties, shali serve
as a guide to assist the Court and the attorneys in
the conduct of the trial.
DATED: June 1, i973
A. THOMAS HUNT
CARLYLE W. HALL, JR.
MARY D. NICHOLS
JOHN R. PHILLIPS
BRENT N. RUSHFORTH
FREDRIC P. SUTHERLAND
STUART P. HERMAN
/s/ By A. Thomas Hunt
A. Thomas Hunt
Attorneys tor Plaintiffs
JOHN H. LARSON
COUNTY COUNSEL
/s/ By William F. Stewart
William F. Stewart
Deputy County Counsel
Attorneys for Defendants
BODLE, FOGEL, JULBER,
REINHARDT and ROTHSCHILD
GEORGE E. BODLE
DANIEL FOGEL
STEPHEN REINHARDT
LOREN R. ROTHSCHILD
/s/ By Stephen Reinhardt
Stephen Reinhardt
Attorneys for Intervenor
IT IS SO ORDERED.
Dated: June 5, 1973.
/s/ William P. Gray
UNITED STATES DISTRICT JUDGE
nie
Schedule One (1): JOINT STATEMENT OF
ISSUES TO BE TRIED
1. Whether or not, as a question of fact and law,
Defendants have engaged in employment practices viola-
tive of 42 U.S.C. §§1981, 1983, and/or 2000 e ef seq.,
as concerns past and present black and Mexican-Ameri-
can applicants for employment as firemen at the Los
Angeles County Fire Department.
2. Whether or not Defendants have interfered with
affirmative action efforts designed to increase minority
participation rates in the workforce of Los An-
geles County, in violation of 42 U.S.C. §§1981, 1983,
and 2000e, ef seq.
3. To what relief, if any, are Plaintiffs entitled
if the Court determines that the answer to either issue
number one (1) or issue number two (2) is in the
affirmative.
4. Whether Plaintiffs’ cause of action and/or the
particular remedies sought herein under 42 U.S.C. §§
1981, 1983, and 2000e ef seq. are barred by an appli-
cable statute of limitations.
The Parties agree that the following issues will not
be tried:
1. Whether Defendants’ promotional employment
practices are violative of 42 U.S.C. §§1981, 1983,
and/or 2000e ef seq., as concerns past and present
black and Mexican-American employees at the Los
Angeles County Fire Department.
2. Whether Plaintiffs, or any members of the class
they represent, are entitled to back pay.
The Parties agree that by entering into this Pre-Trial
Order:
es
1. Defendants are in no way prejudiced as to their
assertion that this action may not be maintained as
a class action, or their assertion that this action may
not be maintained pursuant to 42 U.S.C. §$§1981, 1983,
and 2000e ef seq.
2. Individual members of the classes represented
by Plaintiffs are in no way prejudiced as to any claims
for back pay or other relief relating specifically to
them as individuals they may make in actions other
than the one instantly before this Court.
Schedule Two (2):
STIPULATED FACTS
The Parties hereto, by their attorneys, stipulate as
follows, each reserving the right to object to or argue
as to the relevancy of these stipulated facts:
Il. Background Facts.
1. Defendant County of Los Angeles, Defendant
Los Angeles County Board of Supervisors, and Defend-
ant Los Angeles County Civil Service Commission are
governmental entities established pursuant to the laws
and the Constitution of the State of California. The
Los Angeles County Government performs many func-
tions as an administrative agent of the State of Califor-
nia, including the provision of fire prevention and fire
protection services in certain fire districts located within
the geographical boundaries of Los Angeles County.
These services are performed by Defendant County
of Los Angeles through its fire department, known
as the Los Angeles County Fire Department. (“Fire
Department”).
2. The authorized strength of the Fire Department
is approximately 1980 firemen, although normally ap-
onliiien
proximately 1,900 firemen are employed. The present
work force consists of 1,762 firemen, of whom approxi-
mately nine are black and 50 are Mexican-American.
For purposes of this litigation, Defendants are con-
sidered to have an additional 60 probationary firemen,
of whom 20 are Mexican-American and 10 are black.
Normally approximately 100 firemen are hired each
year at the Fire Department. At the present time,
however, in addition to the 100 vacancies expected
within the next year, there are approximately 78 va-
cancies.
3. In Los Angeles County, there are 7,032,075
inhabitants, of whom 762,844 (10.8%) are black and
1,289,311 (18.3% ) are Mexican-American.
4. Plaintiffs Van Davis and Hershal Clady are black
citizens of the United States. Plaintiff Fred Vega is
a United States Citizen who is Mexican-American.
Plaintiffs Davis, Clady, and Vega are employed by
Defendant County of Los Angeles as firemen in the
Los Angeles County Fire Department. Plaintiffs Davis,
Clady, and Vega have been employed as firemen for
appreximately 19 years, 3 years, and 13 years, re-
spectively.
5. Plaintiffs Bursey, Harris, Smith, Clady, Tucker,
Aubry, Crawford, Amparan are either black or Mexi-
can-American citizens of the United States who applied
for employment as Los Angeles County firemen in
1971, who, in January 1972, took a written examination
for that job, and who currently are listed on an eligibility
list of persons seeking appointments as Los Angeles
County firemen.
Il. Recruitment.
6. The Los Angeles County Personnel Office is
charged with the responsibility for allocating money
—
and personnel for advertising and recruitment for all
Los Angeles County employment positions, including
the position of fireman with the Los Angeles County
Fire Department.
7. At the time the written examination for the
fireman position was administered in 1968, there were
656 whites, 14 blacks and 13 Mexican-Americans who
took the written exam.
8. For the year 1969 when applications were next
taken, approximately 25% of those who applied were
black and Mexican-American. In the next year when
applications were taken, 1971, 11.6% of the applicants
applying were black and 12.8% were Mexican-Ameri-
can for a total of 24.4%.
Ill. Written Test 1968 and 1969.
9. The Los Angeles County Personnel Department
has for several years devised and administered a written
test which has been used as a weighted ranking device
for the selection of candidates for fireman positions.
This written examination was used as a ranking and
selection device for every class of firemen until the
selection of the current class of firemen took place.
(See 4 15, infra)
10. Privately published books called “ARCO” books
are in existence and are designed to assist in preparing
for the written examination. Applicants are not officially
informed of the existence of the ARCO books.
11. Of the 656 whites, 14 blacks and 13 Mexican-
Americans who took the written test in 1968, three
Mexican-Americans and no blacks were hired.
12. In 1969, the written test was administered to
1,080 whites, 244 blacks and 100 Mexican-Americans.
The combined weight of the scores on the written
afin
and physical agility examinations determined qualifica-
tion for oral interviews. The basic results of that 1969
examination were as follows:
took were
written hired
whites 1,080 175
blacks 244 5
_ Mexican-Americans 100 7
13. The written test in 1969 resulted in the follow-
ing mean and median scores, by race:
(a) Mean Scores:
(1) ultimate hires 82.92
(2) all whites 71.61
(3) all blacks 58.16
(4) all Mexican-Americans 64.53
(b) Median Scores
(1) ultimate hires 82.27
(2) all whites 73.41
(3) all blacks 55.00
(4) all Mexican-Americans 65.91
14. The distribution of scores, by race, for the
1969 written test was as follows:
(a) Scored 49.99 or below
(1) whites 45
(2) blacks 75
(3) Mexican-Americans 9
Total 129
(b) Scored 50 to 59.99
(1) whites 157
(2) blacks 71
(3) Mexican-Americans 26
Total 254
= =
(c) 60.00 to 69.99
(1) whites 246
(2) blacks 50
(3) Mexican-Americans 27
Total 323
(d) 70.00 to 79.99
(1) whites 313
(2) blacks 35
(3) Mexican-.Americans 27
Total 375
(e) 80 and above
(1) whites 319
(2) blacks 13
(3) Mexican-Americans 11
Total 343
15. Of the 1300 applicants who took the written
test and the physical agility test in 1969, the top
407 were called for oral interviews. The racial make-
up of that group of 407 included 19 blacks and 14
Mexican-Americans. The written test had a weighted
value of 35% in determining each applicant's total
score on the eligibility list.
16. No studies establishing the validity of the writ-
ten entrance tests have been conducted according to
the procedures set forth in the Equal Employment
Opportunity Commission Guidelines, 29 CFR §1607,
35 Fed. Reg. 12333 (August 1, 1970).
IV. Oral Interviews.
17. Oral interviews traditionally have been utilized
by Defendants as a weighted part of the ranking and
selection procedure. These interviews usually are con-
ducted by several teams, each consisting of a member
onfiiess
of the Los Angeles County Personnel Department and
a member of the Los Angeles County Fire Department.
18. There are no available statistics indicating
whether the oral interview procedure used in 1969
and prior years, had a different impact on black and
Mexican-American applicants as compared to whites.
It did not have a disproportionate detrimental impact
for the current class of applicants.
19. No studies establishing ihe validity of the oral
interviews have been conducted.
V. Height Standards.
20. Prior to 1971 the minimum height requirement
for applicants for fireman positions was 5’8”. The
minimum height requirement for applications taken in
1971 was 5’7”.
21. No studies have been conducted establishing
the validity of the height standards.
VI. Current Examination.
22. In January of 1972, applicants for positions
as firemen were required to take a written test. Of
those 2,414 who took the test, 1904 were white, 196
were black and 283 were Mexican-American. Of those
who took the written examination, 1,885 whites, 170
blacks and 283 Mexican-Americans passed.
23. Those applicants who scored among the top
544 were ranked and were selected for oral interviews
which commenced on January 3, 1972. Of the 544
who were to be [WFS] interviewed, 492 were white,
10 were black, and 33 were [WFS] Mexican-American,
and 9 were of other races. The decision was made
by Defendants on January 8, 1972 to discontinue their
original plan to orally interview only those who ranked
owe 08 ee ee
ee
= =
among the top 544 on the written examination, and
a new procedure was implemented whereby all of the
applicants, with the exception of those 75 persons
who had scored in the bottom 3.1%, would be orally
interviewed. This new procedure commenced on Janu-
ary 20, 1973.
24. In January, February and March, 1973, 1,468
applicants who filed for openings in 1971, and who
had fulfilled other requirements except a medical exam-
ination, were orally interviewed for jobs as Los Angeles
County firemen. 101 were black, 159 were Mexican-
American, 19 of other races, with 1,189 whites. The
1,468 were ranked on an eligibility list. Of the top
315 on the eligibility list, 210 are white, 39 are black,
59 are Mexican-American, and 7 are of other races.
This procedure of ranking applicants by oral interview
did not have a detrimental disproportionate impact
upon black and Mexican-American applicants.
Schedule Three (3): PLAINTIFFS’
STATEMENT OF MATERIAL FACTS AND
RELEVANT LAW
(1) Intent. Until this lawsuit was commenced, De-
fendants were in the process of using a culturally
biased written examination as a device for eliminat-
ing from consideration for hire all but 544 of
2,414 who took the written test. Officials of De-
fendants had known for more than one and one-
half years that this procedure was illegal since
it had a severe disproportionate detrimental impact
upon minorities and had not been validated. Nev-
ertheless those officials stopped the use of this
written test as a device for eliminating most ap-
plicants, only because they learned this lawsuit
(2)
afin
was about to be commenced. Defendants then
ceased consideration of the written test, except
as a device for eliminating those applicants scoring
in the bottom 75 (or 3.1% ). The continued know-
ing use of an illegal procedure goes far beyond
the showing of intent which the law requires.
Rowe v. General Motors, 457 F.2d 348, 355,
(Sth Cir., 1972); Local 189, United Papermakers
v. United States, 416 F. 2d 980, 996-97 (Sth
Cir., 1969), cert. denied, 397 U.S. 919 (1970);
Dobbins v. Local 212, IBEW, 292 F. Supp. 413,
448 (S.D. Ohio 1968).
Statistics. Of the 1762 firemen currently employed
by Defendants in the Los Angeles County Fire
Department, only nine are black and only 50
are Mexican-American. The law is settled that
in cases involving racial discrimination, “statistics
often tell much, and Courts listen.” Alabama vy.
United States, 304 F. 2d 583, 586 (Sth Cir.,
1962), aff'd per curiam, 371 U.S. 37 (1962).
In employment discrimination cases it consis-
tently has been held that where statistical evidence
reveals a severe disproportion between the per-
centage of minority employees and the percentage
of minorities residing within the relevant geograph-
ical area in which the employer is located, a
prima facie case of discrimination is established.
See, e.g. United States v. Local 86, lronworkers,
315 F. Supp. 1202, 1236 (W.D. Wash., 1970),
aff'd 443 F. 2d 544, 551 (9th Cir., 1971), cert.
denied, 404 U.S. 984 (1971); United States v.
Hayes International Corp., 456 F. 2d 112, 120
(Sth Cir., 1972); Parham v. Southwestern Bell
AM cats
se ait PRON be Oe NA
(3)
(4)
~ =
Telephone Co., 433 F. 2d 421, 426 (8th Cir.,
1970).
Recruitment. Prior to 1969, virtually no effort
was made by Defendants to recruit blacks or Mexi-
can-Americans for Fire Department jobs. In 1968,
656 whites, 14 blacks and 13 Mexican-Americans
tock Defendants’ written examination. It is unlaw-
ful for an employer with a paucity of minority
employees to rely upon “word-of-mouth” recruit-
ment practices or other recruitment practices which
result in whites being actively recruited while little
or no effort is made to recruit minorities. U.S.
v. Local 86, Ironworkers, 315 F. Supp. 1202,
1235, (W.D. Wash., 1970) aff'd, 443 F. 2d 544
(9th Cir., 1971), cert. denied 404 U.S. 984
(1971). See also U.S. v. Local 73, Plumbers
and Pipefitters, 314 F. Supp. 160, 163 (S.D.
Ind. 1969).
Illegal Written Entrance Tests. No statistics are
available, for the years prior to 1968, which show
‘the number of minority applicants who took and
passed or failed Defendants’ written entrance ex-
aminations for fireman jobs. In 1968, of the 14
blacks and 13 Mexican-Americans who took the
written examination, only three of the Mexican-
Americans were hired. In 1969, 35% of the whites
taking the test scored high enough to move to
the next step in the hiring Mexican-Americans.
A written test was administered in 1972 to
those applicants applying in 1971. Unti! Defend-
ants learned of the instant lawsuit, Defendants
had intended to use that written test as a device
to eliminate all but the top 544 of 2,414 persons
taking the written exam. If this had been done
(5)
—~— =
it would have had a severe disproportionate detri-
mental impact upon blacks and Mexican-Ameri-
cans, in that 25.8% of the whites taking the
1972 written test scored in the top 544, as com-
pared to 5.1% of the blacks and 11.6% of the
Mexican-Americans taking the exam.
No studies have been conducted by Defendants
showing that these written tests relate to job per-
formance. If a hiring test operates to exclude
minority applicants disproportionately as compared
to whites, as Defendants’ written tests clearly did,
the test is illegal unless it has been shown by
Defendants to relate statistically to job _per-
formance. Griggs v. Duke Power Company, 401
U.S. 424, 431-32 (1971); U.S. v. Local 86 Iron-
workers, 315 F. Supp. 1202, 1236 (W.D. Wash.,
1970); aff'd. 443 F. 2d 544 (9th Cir., 1971),
cert. denied, 404 U.S. 984 (1971); Chance v.
Board of Examiners, 458 F. 2d 1167, 1174 (2d
Cir., 1972); United States v. Jacksonville Terminal
Co., 451 F. 2d 418, 456 (Sth Cir., 1971), cert.
denied, 406 U.S. 906 (1972); Western Addition
Community Organization v. Alioto, 340 F. Supp.
1351, 1356 (N.D. Cal., 1972), See also EEOC,
29 C.F.R. §§1607-1607.14 (1972).
Height Requirements. Defendants, since 1971,
have required all applicants for fireman positions
to be 5’7” tall. Before 1971, the height require-
ment was 5’8”. No study has ever been made
to show that the height standard to job perform-
ance. At trial Plaintiffs will show that thece stan-
dards disproportionatley exclude Mexican-Ameri-
can applicants as compared to whites, in that
et el ALE 4
Oe eee aL
atlas al
(6)
(7)
—29—
the 5’7” standard eliminates approximately 41%
of the Mexican-American applicants as compared
to 15% of the white applicants. Under these cir-
cumstances the height standard is illegal. Griggs
v. Duke Power Co., 401 U.S. 424, 431 (1971);
Meadows v. Ford Motor Company, ........ F. Supp.
sein , 5 E.P.D. 98468 (W.D. Ky., 1973), (weight-
sex discrimination ); EEOC Decision No. 72-0284,
August 9, 1971, CCH Fair Empl. Prac. Guide.
96304, at 4545-46; EEOC Decision No. 71-2643,
June 25, 1971, CCH Fair Empl. Prac. Guide,
96286 (sex discrimination); EEOC Guidelines on
Discrimination because of National Origin, 29
C.F.R. §1606.1 (1972); United States Department
of Justice, Guidelines on Minimum Height Re-
quirements, Law Enforcement Assistance Admin-
istration. 38 Federal Register 6415 March 9, 1973,
found at CCH Fair Empl. Prac. Guide, 95138.
Affirmative Action. Several persons have en-
gaged in affirmative action efforts for the purpose
of increasing the minority employment participa-
tion rate at the Los Angeles County Fire Depart-
ment. Officials of Defendants have interfered with
such efforts. Such interference constitutes a vio-
lation of law. United States v. Local 169, Car-
penters, 457 F. 2d 210, 217-20 (7th Cir., 1972),
cert. denied, ........ | wana (1973).
“ARCO” Books. There are certain books, known
as “ARCO” books, which private companies pub-
lish, and which assist applicants in taking the fire
department entrance exams. Persons familiar with
civil service commision procedures are more likely
to know of the existence of these books. Appli-
cants for Fire Department jobs are not informed
(8)
(9)
asiiiies
of the existence of these books. Since there are
virtually no minorities in the Fire Department,
white friends and relatives of incumbent firemen
have an advantage not afforded minority applicants
who have no way of learning of the existence
of the “ARCO” books. Such a nepotistic practice
which operates to exclude minorities violates the
law. United States v. Local 86, Ironworkers, 315
F. Supp. 1202, 1235 (W.D. Wash., 1970) aff'd
443 F. 2d 544 (9th Cir., 1971), cert. denied
404 U.S. 984 (1971); Local 53, Asbestos Workers
v. Vogler, 407 F. 2d 1047, 1054 (Sth Cir., 1969).
Reputation. Plaintiffs will show at the trial that
Defendants have a bad reputation in the minority
communities of Los Angeles, as far as discrimina-
tory employment practices are concerned. The law
imposes a burden upon employers to take affirma-
tive action to vitiate the effects of a discriminatory
reputation in minority communities. United States
v. Local 86, lronworkers, 315 F. Supp. 1202,
1236-37 (W.D. Wash., 1970) aff'd 443 F. 2d
544 (9th Cir., 1971), cert. denied, 404 U.S.
984 (1971): Carter v. Gallagher, 452 F. 2d 315,
331 (8th Cir., 1971), cert. denied, 406 USS.
950 (1972).
Cessation of Use of Discriminatory Written Test.
As noted above, when Defendants learned that
commencement of this class action lawsuit was
imminent, Defendants in effect discontinued use
of their written test as a ranking or screening
device for applicants for hire at the Los Angeles
County Fire Department. It is settled law that
employers cannot escape legally required Court-
ordered accelerated hiring merely by ceasing to
al
=~ =
discriminate upon learning of an impending law-
suit. United States v. Local 86, Ironworkers, 315
F. Supp. 1202, 1235 (W.D. Wash., 1970), aff'd
443 F.2d 544 (9th Cir., 1971), cert. denied 404
U.S. 984 (1971); Local 53, Asbestos Workers
v. Vogler, 407 F. 2d 1047, 1055 (Sth Cir.,
1969); United States v. Local 73, Plumbers and
Pipefitters, 314 F. Supp. 160, 163 (S.D. Ind.,
1969); United States v. Local 38, IBEW, 428
F. 2d 144, 151 (6th Cir., 1970) cert. denied
400 U.S. 943 (1970). See also Lankford v. Gel-
ston, 364 F. 2d 197, 203 (4th Cir., 1966).
(10) Evidence of Past Discrimination. Plaintiffs antici-
pate that Defendants will contend at trial that
evidence of discrimination which occurred before
the effective date of Title VII, and/or before the
statute of limitations cut-off date, is not admissible.
Such a position is contrary to the established
law. See e.g. United States v. Local 1, Ironworkers,
438 F. 2d 679, 683 (7th Cir., 1971); United
States v. Local 38, IBEW, 428 F. 2d 144 (6th
Cir., 1970) cert. denied 400 U.S. 943 (1970);
Local 189, United Papermakers v. U.S., 416 F.
2d 980 (Sth Cir., 1969) cert. denied 397 US.
919 (1970); Dobbins v. Local 212, IBEW, 292
F. Supp. 413, 443-44 (S.D. Ohio 1968); and
cases cited therein.
(11) Remedy. Plaintiffs seek the imposition of an
order requiring Defendants to hire one black and
one Mexican-American, for each white hired. The
appropriateness and legality of this relief is fully
discussed in Plaintiffs’ Trial Memorandum sub-
mitted concurrently with this Pre-Trial Order. That
memorandum makes it clear that accelerated hiring
=
is not only appropriate, but has come into wide-
spread and accepted use as the preferred method
vai
Schedule Seven (7):
PLAINTIFFS’ EXHIBIT LIST
of erasing the effects of past discrimination. As
is fully discussed in the Trial Memo, unless this
Court grants the accelerated hiring relief sought
by Plaintiffs, the effects of past discrimination 2. Memo from entine dated 12/1/72.
will continue to be felt for the remainder of Memo re Statistical Breakdown of Firemen
this century. The black and Mexican-American Candidates. '
communities of Los Angeles County are entitled Memo from Nesvig dated 1/16/73.
to have their rights vindicated within a more rea- Memo from Nesvig dated 5/19/71.
4
5
sonable period of time. 6. Letter from Nesvig dated 9/30/71.
Schedule Four (4): DEFENDANTS’ STATEMENT 7. Memo from Nesvig dated 6/20/72.
8
y
1. Memo re chronology of Fireman Examina-
tion.
OF MATERIAL FAC1S AND RELEVANT LAW Memo from Nesvig dated 7/14/72.
Defendants will set forth in their Trial Memorandum Memo from Nesvig dated 1/17/69.
their statement of material facts and relevant law. 10. Bulletin announcing 1971 application date.
Schedule Five (5): PLAINTIFFS’ WITNESS LIST 11. Minority Recruitment Bulletin.
1. Gordon Nesvig 12. Memo from Nesvig dated 7/7/72.
2. Chief Barlow 13. Report of Los Angeles County Task Force
3. Harold McCann to Study the County’s Affirmative Action Pro-
4. Charles Crane gram.
; : ra ei mgag 14. Personnel File of Harold McCann.
° . Bb. J. lillams — “ . + 99
7. Hershel Clady 15. ee (“class specification”) of
8. Van Davis ! ; = ria ;
a) eee 16. Written Tests Administered in 1967, 1969,
10. Dr. Bernard Karpinos — ; ,
Schedule Six (6): DEFENDANTS’ WITNESS LIST c7, FOO Cae CARRE Has Sea
Americans as Compared to Whites.
1. Gordon Nesvig : ;
2 Chief Houtz | 18. Copy of Article from Journal of American
3. Eliot Marcus tara Authors Trotter and Glesser.
4. Chief Meagher | 19. “ARCO” Books.
5. Chief Yoder
6. Chief Collins
7. Michael Eier
omar BN ne EM Ore ne ee
=_—o
Schedule Eight (8):
DEFENDANTS’ EXHIBIT LIST
1. County of Los Angeles Civil Service Regula-
tions.
2. List of Organizations for recruitment bro-
chures.
3. County of Los Angeles Affirmative Action
Plan.
Schedule Nine (9):
CONCISE STATEMENT AS TO
RELIEF SOUGHT BY PLAINTIFFS
The basic relief sought by Plaintiffs in this action
is an order requiring Defendants to hire one qualified
black and one qualified Mexican-American, for each
white hired at the Los Angeles County Fire Department,
until such time as the percentage of blacks and Mexican-
Americans in the workforce equals the percentage of
blacks and Mexican-Americans in the general popula-
tion of Los Angeles County. As is fully discussed
in the Trial Memorandum filed by Plaintiffs concur-
rently with this Pre-Trial Order, such relief is necessary
in order to eliminate within a reasonable number of
years, the presently existing effects of past discrimina-
tion.
If the Court determines, after trial, that such an
injunction should issue requiring Defendants to engage
in accelerated hiring of qualified blacks and qualified
Mexican-Americans, pursuant to set numerical ratios,
Plaintiffs seek only the limited further relief that De-
fendants be required to enzage in good faith recruitment
efforts in the relevant minority communities, that Plain-
tiffs receive periodic progress reports showing whether
the goals are being met, and that Plaintiffs receive
-_ =
reasonable costs and attorneys fees. Plaintiffs do not
seek extensive further relief because although many
of the Defendants’ recruitment and hiring procedures
and standards have operated to exclude qualified mi-
norities disproportionately in the past, if a set numerical
hiring goal of qualified minorities is required, all that
Plaintiffs seek will be achieved. Whatever practices
and procedures Defendants wish to use in selecting
the qualified firemen will be immaterial as long as
the hiring ratio is met. Plaintiffs are interested in results,
not procedures. The only desired result is that the
effects of past discrimination be eliminated within a
reasonable number of years. Therefore, if the Court
orders the relief sought by Plaintiffs, Defendants will
be entirely free to follow any procedures and practices
they consider necessary to select qualified firemen.
Plaintiffs are willing to limit the relief sought in
this manner because there is a relevant population
of more than 29% blacks and Mexican-Americans,
and because the parties have estimated that under a
two for one ratio, only approximately 66 minorities
would be hired each year. Under such circumstances,
therefore, regardless of the procedures and standards
applied, as long as those procedures and standards
are at all reasonable, Defendants will have no difficulty
in fulfilling the hiring goals sought by Plaintiffs.
Schedule Ten (10):
INTERVENOR’S CONCISE
STATEMENT AS TO RELIEF SOUGHT
It is the Intervenor’s position that in the event that
the Court issues any order which affects the hiring
of personnel for the Fire Department that such order
should include specific provisions directing that (1)
—36—
the standards and criteria for employment are not re-
duced as a result of any act required by said order,
and (2) the County be required to develop additional
standards and criteria for hiring of new personnel which
will ensure that all persons employed by the Department
are qualified to perform the job of fireman and have
the capacity to progress through promotion given ade-
quate training and experience in the job as fireman,
and taking into account changes and developments
in the nature of the duties of fire fighters as well
as technological improvements. It is requested that the
County be directed to permit Intervenor to participate
fully in the development of such additional standards
and criteria.
Intervenor further requests that any order of the
Court affecting hiring include a provision that the
County be required to develop affirmative action, re-
cruitment and training programs and to expend such
funds as may be reasonably necessary in the implemen-
tation thereof for the purpose of insuring that the
most qualified persons will be employed by the Depart-
ment. Intervenor further requests that the County be
directed to develop such programs in conjunction with
_ Intervenor and be directed to conduct such programs
jointly with Intervenor. It is further requested that
any such order specifically provide that County proper-
ty, equipment and personnel may be utilized for the
purpose of conducting such programs, and that County
personnel participating therein, including employees rep-
resented by Intervenor, shall do so as a part of their
official duties.
Intervenor further suggests that in the event that
the Court issues any order which affects the hiring
—~ =
of personnel for the Fire Department it retain jurisdic-
tion for the purpose, among others, of reviewing at
the request of any party any and all actions taken
pursuant to the provisions requested by Intervenor.
Schedule Eleven (11):
INTERVENOR’S WITNESS LIST
Intervenor intends to call two witnesses whose names
will be made known to the other parties before trial.
—_ =
APPENDIX D.
Findings of Fact and Conclusions of Law.
United States District Court, Central District of Cali-
fornia.
Van Davis, et al., Plaintiffs, vs. County of Los
Angeles, et al., Defendants. Civil Action No. 73-63-
WPG.
The Court, after trial, and based upon the Pre-
Trial Order and all other papers filed herein, and
all proceedings had herein, makes the following Find-
ings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. Defendant County of Los Angeles, Defendant
Board of Supervisors of the County of Los Angeles,
and Defendant Los Angeles County Civil Service Com-
mission (“Defendants”) are governmental entities estab-
lished pursuant to the Constitution and laws of the
state of Califonria. Defendant County of Los Angeles
performs the function among others, of providing fire
prevention and fire protection services in certain dis-
tricts located within the geographical boundaries of Los
Angeles County. Those services are performed through
the Los Angeles County Fire Department. Intervening
Defendant Los Angeles County Fire Fighers, Local
1014 (“Intervenor”) represents the firemen currently
employed at the Los Angeles County Fire Department.
Plaintiffs are blacks and Mexican-Americans who are
either incumbent firemen at the Los Angeles County
Fire Department or are present applicants for employ-
ment with that department.
2. The workforce at the time the complaint herein
was filed, at the Los Angeles County Fire Department,
enfiiean
consisted of 1,762 firemen, of whom nine (0.5%)
are black and fifty (2.8%) are Mexican-American.
In Los Angeles County, 10.8% of the inhabitants are
black and 18.3% are Mexican-American. Defendants
did not justify, at the trial or other proceedings herein,
the paucity of black and Mexican-American firemen
employees at the Los Angeles County Fire Department,
as compared to the general population statistics for
those minority groups.
3. Defendants have engaged in the following em-
ployment practices: (a) utilizing, until learning that
this lawsuit was about to commence, written tests as
a selection device for entry level positions at the Los
Angeles County Fire Department, although such
tests had a disproportionate detrimental impact upon
black and Mexican-American applicants, and despite
the fact that such tests have not been shown by a
validation study to be related to or predictive of job
performance statistically; and (b) failing and refusing
to take necessary affirmative steps to overcome the
existence in the black and Mexican-American communi-
ties of Los Angeles County of a reputation that the
Los Angeles County Fire Department discriminates
against blacks and Mexican-Americans.
4. Defendants did not interfere with affirmative
action efforts of individual persons designed to increase
black and Mexican-American participation rates in the
workforce of the Los Angeles County Fire Department.
5. Defendants’ minimum height standard of 5’7”
is substantially and reasonably related to job perform-
ance as a fireman.
6. The accelerated hiring to be ordered by the
Court is based on all Findings, including the following
considerations:
—_ =
(a) it seems evident, as officials of Defendants testi-
(b)
(c)
(d)
fied at the trial, that Defendants will have no
difficulty finding sufficient numbers of qualified
Mexican-American potential firemen to fill the
required ratios;
it is in the public interest to accelerate the
elimination of the racial imbalance at the Los
Angeles County Fire Department caused by the
past discrimination of Defendants;
it appears that unless the Court orders acceler-
ated hiring at the Los Angeles County Fire
Department, there will not be sufficient hiring
of blacks and Mexican-Americans as is neces-
sary to overcome the presently existing effects
of past discrimination within a reasonable period
of time;
it appears that a Court order requiring acceler-
ated hiring of minorities will aid those officials
of Defendants who desire the elimination of
the effects of past discrimination, in that such
an order in all likelihood will make minority
recruiting efforts more effective;
(e) because the Court concludes infra at conclusion
Number Five (5) that Defendants’ requirement
that all applicants be not less than 5’7” in
height is valid, appropriate and legal, and be-
cause it was stipulated herein that the 5’7”
minimum height requirement eliminates from
consideration approximately 41% of the Mexi-
can-American male population, it will be more
difficult for Defendants to recruit sufficient num-
bers of Mexican-Americans on an accelerated
basis is reduced.
ee —————<—
ee ee
a
7. Neither Defendants nor their officials engaged
in employment practices with a willful or conscious
purpose of excluding blacks and Mexican-Americans
from employment at the Los Angeles County Fire
Department. To the contrary, several of Defendants’
officials engaged in efforts designed to increase the
minority representation in the Los Angeles County Fire
Department. Defendants did, however, intentionally en-
gage in the employment practices outlined above in
Finding of Fact Number Three (3).
CONCLUSIONS OF LAW
1. The Court has jurisdiction of this action under
Title 28, U.S.C. $1343, this being a suit in equity
te redress the deprivation of rights guaranteed by the
laws of the United States. Those rights are guaranteed
by 42 U.S.C. §§1981 and 1983 and Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C.
2000e et seq. (“Title VII").
2. This action may be maintained by the Plaintiffs
as a class action pursuant to Rule 23(a) and 23(b)(1)
and (2) of the Federal Rules of Civil Procedure.
The class represented is all present and future black
and Mexican-American applicants and employees at
the Los Angeles County Fire Department.
3. Plaintiffs’ cause of action is not barred by any
applicable statute of limitations. United States v. Local
1, Ironworkers, 438 F.2d 679, 683 (7th Cir., 1971);
United States v. Local 38, IBEW, 428 F.2d 144 (6th
Cir., 1970), cert. denied 400 U.S. 943 (1970).
4. In cases involving discrimination based on race
and national origin, “statistics often tell much, and
Courts listen.” Alabama v. United States, 304 F.2d
583, 586 (Sth Cir., 1962), aff'd per curiam, 371
— =
U.S. 37 (1962). In employment discrimination cases
it consistently has been held that where employment
statistics, such as those before the Court, reveal a severe
disproportion between the percentage of minority em-
ployees and the percentage of minorities residing within
the relevant geographical area in which the employer
is located, a prima facie case of discrimination is estab-
lished. See, e.g., United States v. Local 86, Ironworkers,
315 F.Supp. 1202, 1236 (W.D. Wash., 1970), affd
443 F.2d 544, 551 (9th Cir., 1971) cert. denied
404 U.S. 984 (1971); United States v. Hayes Interna-
tional Corp., 456 F.2d 112, 120 (Sth Cir., 1972);
Parham v. Southwestern Bell Telephone Co., 433 F.2d
421, 426 (8th Cir., 1970). Defendants in this case
did not rebut the prima facie case for Plaintiffs estab-
lished by the statistics, cited in Findings of Fact Number
Two (2).
5. Defendants’ practice of disqualifying all appli-
cants for fireman positions who fail to fulfill the per-
sonal requirement of being at least 5’7” in height
is valid, appropriate and not violative of 42 U.S.C.
§§1981 or 1983, or of Title VII. Defendants are not
required by law to conduct a scientific or empirical
study showing whether there is a relationship between
that height requirement and job performance.
6. Since Defendants did intentionally engage in em-
ployment practices which had the effect of discriminat-
ing against blacks and Mexican-Americans (Finding
of Fact Number Seven (7)), Plaintiffs have satisfied
the showing of intent required by law. Rowe v. General
Motors, 457 F.2d 348, 355 (Sth Cir., 1972).
7. In order to eliminate the effects of past dis-
crimination against blacks and Mexican-Americans,
nas alin, ena elma
oo . nlite ee
ee eee ee ae
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ee
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Ne teat at steel 5 IR ee JOM
—_
those effects being the currently existing racial im-
balance in the workforce of the Los Angeles County
Fire Department, it is appropriate and constitutional
to order the Defendants to engage in the hiring of
blacks and Mexican-Americans on an accelerated basis
as set forth in the Judgment herein. United States
v. Local 86, Ironworkers, 315 F.Supp. 1202, 1248
(W.D. Wash., 1970); aff'd 443 F.2d 544 (9th Cir.,
1971), cert. denied 404 U.S. 984 (1971); United
States v. IBEW, Local 212, 472 F.2d 643 (6th Cir.,
1973); Carter v. Gallagher, 452 F.2d 315 (8th Cir.,
1972) cert. denied 406 U.S. 950 (1972).
8. Plaintiffs as prevailing parties are entitled to
costs and reasonable attorneys fees against Defendant
County of Los Angeles.
Ey , 1973
Consented to, as to
form only, subject to
intervenor’s statement
William P. Gray
United States District Judge
A. THOMAS HUNT
CARYLE W. HALL, JR.
MARY D. NICHOLS
JOHN R. PHILLIPS
BRENT N. RUSHFORTH
FREDRIC P. SUTHERLAND
STUART P. HERMAN
By /s/ A. Thomas Hunt
A. Thomas Hunt
Attorneys for Plaintiffs
— a
JOHN H. LARSON
COUNTY COUNSEL
By /s/ William F. Stewart
William F. Stewart
Deputy County Counsel
Attorneys for Defendants
BODLE, FOGEL, JULBER,
REINHARDT and ROTHSCHILD
GEORGE E. BODLE
DANIEL FOGEL
STEPHEN REINHARDT
LOREN R. ROTHSCHILD
By /s/ Stephen Reinhardt
Stephen Reinhardt
Attorneys for Intervenor
eee El
M8 TT TSE Se a ae
ee
—_~ =
APPENDIX E.
Judgment.
United States District Court, Central District of Cali-
fornia.
Van Davis, Hershel Clady and Fred Vega, individual-
ly and on behalf of all others similar situated; Willie
C. Bursey, Elijah Harris, James W. Smith, William
Clady, Stephen Haynes, Jimmie Roy Tucker, Leon
Aubry, Ronald Crawford, James Herald, Alfred R.
Baltazar, Osbaldo A. Amparan, individually and on
behalf of all others similarly situated. Plaintiffs, vs.
County of Los Angeles: Board of Supervisors of the
County of Los Angeles, and Civil Service Commission
of the County of Los Angeles, Defendants. Civil No.
73-63-WPG.
In accordance with the Findings of Fact and Con-
clusions of Law filed herein, it is on this ...... day of
July, 1973,
Ordered:
1. Defendants County of Los Angeles, Board of
Supervisors of the County of Los Angeles, and the
Los Angeles County Civil Service Commission (“De-
fendants”) are permanently enjoined and restrained
from engaging in any employment practice which dis-
criminates on the basis of race or national origin against
the class represented by Plaintiffs in this Action, that
class being all present and future black and Mexican-
American firemen applicants and firemen employees
at the Los Angeles County Fire Department.
2. Defendants shall in good faith make all affirma-
tive action efforts reasonably possible and necessary
to increase the black and Mexican-American participa-
—
tion rates in the fireman workforce at the Los Angeles
County Fire Department, until such time as those parti-
cipation rates are commensurate with the black and
Mexican-American population percentages of Los An-
geles County.
3. A minimum of twenty per cent (20%) of all
new employees employed in fireman positions at the
Los Angeles County Fire Department, in any one year,
beginning with July 1, 1973, shall be blacks until such
time as the percentage of blacks in the fireman work-
force of the Los Angeles County Fire Department
is equal to the percentage of blacks in the general
population of Los Angeles County.
4. A minimum of twenty per cent (20%) of all
new employees employed in fireman positions at the
Los Angeles County Fire Department, in any one year,
beginning with July 1, 1973, shall be Mexican-
Americans until such time as the percentage of Mexican-
Americans in the fireman workforce of the Los Angeles
County Fire Department is equal to the percentage
of Mexican-Americans in the general population of
Los Angeles County.
5. Within thirty days of July first of every year,
until such time as the black and Mexican-American
participation rates at the Los Angeles County Fire
Department are equal to the percentage of blacks and
Mexican-Americans in the general population of Los
Angeles County, Defendant County of Los Angeles
shall file a report with the Court and counsel for
Plaintiffs, or any person designated by such counsel;
the report shall set forth the total number of new
employees employed in fireman positions at the Los
Angeles County Fire Department during the immed-
iately preceding twelve month period, with a racial
wer
se 0 a A 2° SST a eT See ee
—_,
breakdown showing the number of blacks and the
number of Mexican-Americans among such new em-
ployees. Further, such a report shall be made within
thirty days of January 1, 1974, but shall not be required
thereafter except on each July first, as provided for
immediately above.
6. For purposes of this Order the race and/or
national origin of each applicant and new employee
shall be determined by a questionnaire to be completed
by each applicant, giving each applicant an opportunity
to designate whether he is “black”, “Mexican-
American”, “Spanish-surnamed” shall be considered
“Mexican-Americans.” If it is determined by Defendants
to be convenient administratively, the described ques-
tionnaire may be included as part of Defendants’ appli-
cation form for fireman positions. Counsel for Plaintiffs,
upon reasonable notice in writing, shall have access
to all such applications and/or questionnaires.
7. Nothing in this Order shall in any way be deemed
to require or encourage Defendants: (a) to employ
any person not qualified for a fireman position with
the Los Angeles County Fire Department; or (b) to
in any way lower or refrain from increasing the stand-
ards for employment as firemen at the Los Angeles
County Fire Department, provided such standards are
reasonably related to the qualifications of potential
firemen; all other provisions in this order are subordi-
nate to the provisions of this paragraph numbered
seven (7) and shall be subject to modification in
the event of any conflict herewith.
8. Plaintiffs shall be awarded reasonable costs and
attorneys’ fees, to be paid by Defendant Los Angeles
County. Counsel for Plaintiffs and counsel for De-
fendant County of Los Angeles, shall meet within ten
— =
days of entry of this Order to attempt to agree on
the amount of such costs and attorneys’ fees. If the
parties reach such agreement, the parties shaJl submit
to the Court, by stipulation, a proposed Order reflect-
ing such agreement. If the parties are unable to reach
such an agreement, Plaintiffs shall be entitled to move
within twenty days of the date of this Order, on the
regular motion calendar, for a determination by the
Court of the appropriate amount of such costs and
attorneys fees.
9. Paragraphs three (3) and four (4) of this
Order are subject to the provision that employees hired
pursuant to a merger with or acquisition of other
fire departments by Defendants, as well as employees
hired into Defendants’ regular training classes for new
firemen, shall be considered “new employees”; this pro-
vision as to mergers and acquisitions however, does
not require Defendants to hire forty percent blacks
and Mexican-Americans in the year in which the merger
or acquisition occurs, provided that:
(a) at least forty percent of the new employees
hired into the training class or classes, during
the year the merger or acquisition occurs, are
black or Mexican-American; and in addition
(b) if the merger or acquisition involves a fire de-
partment of less than fifty fireman employees,
within two years after the merger or acquisition
occurs, Defendant shall have hired sufficient
numbers of blacks and Mexican-Americans to
meet the forty (40) percent requirements of
paragraphs three (3) and four (4) of this Or-
der; or if the merger involves a fire department
of fifty to ninety-nine fireman employees, within
ee Ree ee 8
(c)
(d)
—_ =
three years after the merger occurs, Defendants
shall have hired sufficient numbers of blacks
and Mexican-Americans to meet the forty (40)
percent requirements of paragraph three (3)
and four (4) of this Order; or if the merger
Or acquisition involves a fire department of
from two-hundred and one to four hundred
and ninety-nine fireman employees, within a pro-
portionate number of years to those given im-
mediately above, Defendants shall have hired
sufficient numbers of blacks and Mexican-Amer-
icans to meet the forty percent requirements
of paragraphs three (3) and four (4) of this
Order; and .
provided further that subparagraph 9 (b) im-
mediately above shall be deemed satisfied if
Defendants select the alternative procedure of
hiring in the next succeeding regular training
class or classes after the occurrence of any
merger or acquisitions, no less than fifty (50)
percent blacks and Mexican-Americans, until
such time as the over-all number of black and
Mexican-American new employees hired after
entry of this order equals forty percent of all
new employees as required by paragraphs three
(3) and four (4) of this Order; and
provided further that the provisions of this para-
graph number Nine (9) of this order shall
not be applicable to any merger involving a fire
department with more than 500 fireman em-
ployees, and if such a merger occurs any party
may apply to this Court for such relief as
as the law and the interests of justice may
require in the situation.
_— =
10. Paragraphs three (3) and four (4) of this
Order also are subject to the provision that employees
of any race or national origin who fail to complete
their probationary periods shall not be counted in deter-
mining whether the requirements of paragraphs three
(3) and four (4) of this Order are being met, provided
that if in any year a disproportionately high number
of blacks and Mexican-Americans are terminated prior
to completion of their probationary period, Defendants
shall be required to employ in the next succeeding
training class, sufficient numbers of blacks and
Mexican-Americans as is required to bring the per-
centage of blacks and Mexican-Americans employed
in the two training classes, taken together, within the
requirements of paragraphs three (3) and four (4)
of this Order.
11. The Court shall maintain continuing jurisdic-
tion of this action for such alterations or amendments
to this Order or other relief as may appropriate, until
such time as the black and Mexican-American participa-
tion rates in the fireman workforce of the Los Angeles
County Fire Department are equal to the percentage
of blacks and Mexican-Americans in the general popu-
lation of Los Angeles County, at which time any party
may apply to the Court for dissolution of this Order,
and such dissolution shall be granted provided the
black and Mexican-American participation rates at the
Los Angeles County rire Department are commensurate
with the percentage of blacks and Mexican-Americans
in the general population of Los Angeles County.
Dated: 1973
often
Consented to, as to
form only, subject to
Intervenor’s statement:
William P. Gray
United States District Judge
A. THOMAS HUNT
CARLYLE W. HALL, JR.
MARY D. NICHOLS
JOHN R. PHILLIPS
BRENT N. RUSHFORTH
FREDRIC P. SUTHERLAND
STUART P. HERMAN
By /s/ A. Thomas Hunt
A. Thomas Hunt
Attorneys for Plaintiffs
JOHN H. LARSON
COUNTY COUNSEL
By /s/ William F. Stewart
Deputy County Counsel
Attorneys for Defendants
BODLE, FOGEL, JULBER,
REINHARDT and ROTHSCHILD
GEORGE E. BODLE
DANIEL FOGEL
STEPHEN REINHARDT
LOREN R. ROTHSCHILD
By /s/ Stephen Reinhardt
Stephen Reinhardt
Attorneys for Intervenor
—™
APPENDIX F.
Opinion.
United States Court of Appeals, foi the Ninth Circuit.
Van Davis, et al., Plaintiffs-Appellants, vs. County
of Los Angeles, et al., etc., Defendants-Appellees. No.
73-3008.
Van Davis, et al., Plaintiffs-Appellees, vs. County
of Los Angeles, et al., etc., Defendants-Appellants No.
73-3009.
[October 20, 1976].
Appeal from the United States District Court for
the Central District of California.
Before: TUTTLE,* HUFSTEDLER and WALLACE,
Circuit Judges.
TUTTLE, Circuit Judge:
This suit was brought on 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 An-
geles County, the Board of Supervisors 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. $§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
Department employed blacks and Mexican-Americans
*Honorable Elbert P. Tuttle, Senior United States Circuit
Judge, Fifth Circuit, sitting by designation.
Jurisdiction was based on 28 U.S.C. §1343. The additional
allegations of racial discrimination in promotions were abandoned
prior to trial.
—_
grossly out of proportion to their number in the popula-
tion of L.A. County. The court further found that
the Fire Department, despite its admitted knowledge
of its prior discriminatory practices and its bad reputa-
tion 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 accelerated hiring of racial minorities in a
ratio of one black and one 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 popula-
tion 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 employ-
ment, and that this height requirement had the effect
of eliminating 45% of the otherwise eligible 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 limiting 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 require-
ment has been sufficiently validated by the defendants,
*Data introduced by the plaintiffs showed that this 1-1-
5 ratio, given the present rate of new hiring, would produce
a work force of minority firemen in proportion to the number
of minority persons in the workforce by 1979 for blacks and
1983 for Mexican-Americaas.
anfitine
and accordingly we reverse and remand for reconsidera-
tion of the proper ratio of accelerated racial hiring
to be ordered.
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 defendants do not,
and indeed cannot, dispute the trial court’s finding
that these data establish a prima facie case of racial
discrimination. This Court has recognized that such
statistics can prove past racial discrimination. United
States v. Ironworkers Local 86, 443 F.2d 544, 550
(9th Cir. 1971) cert. denied 404 U.S. 984 (1971).°
Unable to contest the indisputable legal effect of these
data, the defendants pose a number of procedural de-
fenses all involving the claim that whatever discrimina-
tory 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 com-
plained of occurred 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
8The cases holding that statistics alone may prove a prima
facie case of racial discrimination in employment thereby shifting
the burden to the defendants to justify the racial imbalance,
are by this time legion. See, e.g., United States v. Hayes
International Corp., 456 F.2d 112 (Sth Cir. 1972); Rowe
vy. General Motors Corp., 457 F.2d 348 (Sth Cir. 1972);
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (Sth
Cir. 1974): United States v. N.L. Industries, Inc., 479 F.2d
354 (8th Cir. 1973); United States v. Masonry Contractors
Ass’n., 497 F.2d 87! (6th Cir. 1974).
—_ =
of limitations on the plaintiffs §§1981 and 1983
claims.*
These three arguments are all based on the same
undisputed fact: the last time the defendants admin-
istered a test to job applicants which had discriminatory
effect was August 1969.° Thus because none of the
class representatives in this suit were unsuccessful appli-
cants in 1969, and because the test was administered
prior to the three-year cut off for the §§1981 and
1983 claims, and well before March 24, 1972, accord-
ingly the defendants argue their past discriminatory
actions cannot give rise to current liability. The district
court found that the past discriminatory acts had contin-
uing effect, thereby justifying present relief. We agree.
*The plaintiffs do not dispute the fact that Title VII became
applicable to municipalities on March 1, 1972. See 42 U.S.C.
§2000e(a). Nor do they dispute the fact that their §$1981
and 1983 claims are governed by the state three year statue
of limitations. See Mills v. Small, 446 F.2d 249 (9th Cir.
1971) cert. denied 30 L.Ed.2d 543 (1971). Because plaintiffs’
complaint was filed on January 11, 1973, the occurrences
ee of must have happened subsequent to January 11,
0.
*The defendants do not dispute the fact that this verbal
aptitude test had discriminatory impact, and could not be vali-
dated under the requirements of Griggs v. Duke Power Co., 401
U.S. 424 (1971). Of the 244 blacks who took this test,
5 were hired; of the 100 Mexican-Americans, 7 were hired,
while of the 1080 whites taking the test, 175 were hired.
Thus while approximately 25% of the applicants were black
or Mexican-American, based on the results of this test only
6.4% of the hires were minorities.
“The trial court’s Finding No. 6 contains the following
language: “The accelerated hiring to be ordered by the court
is based on all findings, including the following considerations:
(b) It is in the public interest to accelerate the elimination
of the racial imbalance at the Los Angeles County Fire De-
partment caused by the past discrimination of defendants.
(This footnote is continued on next page)
—56—
In our view the defendants claim that because the
1969 examination was administered in 1969 it accord-
ingly had effect only in 1969 is manifestly incorrect.
The 1969 examination was administered to a large
group of applicants; the successful applicants who
scored well on this examination and in the subsequent
interview were certified as eligible candidates, and were
placed on an eligibility list for later employment as
vacancies occurred in the ranks of the firemen. The
parties stipulated approximately 100 such vacancies
occur each year. 187 applicants were placed on the
eligibility list following the 1969 examination. Based
on these facts, the district court found that the examina-
tion had effect past 1969, and we think this was
certainly correct. While the plaintiffs failed to show
that any candidate on this list was hired after March
24, 1972, it is obvious that most were hired after
January 11, 1970. Thus despite the failure of the
plaintiffs to prove that specific discriminatory acts
occurred during the effective period covered by Title
VII, it is clear that discriminatory hiring did take
(c) It appears that unless the court orders accelerated hiring
at ie Los Angeles County Fire Department there will not
be sufficient hiring of blacks and Mexican-Americans as 1s
necessary to overcome the presently existing effects of past
discrimination within a reasonable period of time.”
Conclusion of Law No. 7 says: be
In order to eliminate the effects of past discrimination
against blacks and Mexican-Americans, those effects being
the currently existing racial imbalance in the workforce
of the Los Angeles County Fire Department, it is appro-
priate and constitutional to order the Defendants to engage
in the hiring of blacks and Mexican-Americans on an
accelerated basis as set forth in the Judgment herein.
...” (Emphasis supplied).
—_ =
place within the three years prior to their §§1981
and 1983 claims.®
The defendants further argue that the district court
lacked jurisdiction under either §§1981 or 1983. As
to $1983 the defendants are clearly correct. A munici-
pality is not a “person” suable under §1983" and
thus the three municipal defendants are not subject
to suit under $1983. Monroe v. Pape, 365 U.S. 167
(1961); City of Kenosha v. Bruno, 412 U.S. 507
(1973). No individual defendants were named in the
suit, and thus the plaintiffs’ §1983 claim is barred.®
§1981 is not subject to the same jurisdictional limita-
tions; the language of the statute does not require
that a defendant be a “person” before suit may be
*We do not consider the plaintiffs’ additional arguments that
such factors as the defendants’ bad reputation in the minority
community or nepotistic word-of-mouth recruiting and coun-
selling may, alone, constitute sufficient discriminatory practices
as to establish a valid Title VII claim. The evidence on these
points was extremely impressionistic and the district court did
not rely on these theories.
742 U.S.C. $1983 provides:
“Every person who, under color of any statute . . . of
any state . . . subjects . . . any citizen of the United
States . . . to the deprivation of any rights . . . secured
by the Constitution and laws, shall be liable to the party
injured in any action at law, suit in equity, or other
proper proceedings for redress.” (emphasis added).
‘Individuals may be sued in their official capacity. See
Harper v. Kloster, 486 F.2d 1134, 1138 (4th Cir. 1973);
United Farmworkers of Florida Housing Project, Inc. v. City
of Del Ray Beach, Florida, 493 F.2d 799, 802 (Sth Cir.
1974); Sterzing v. Fort Bend Independent School District, 496
F.2d 92, 93 n.2 (Sth Cir. 1972). As the plaintiffs did not
allege federal question jurisdiction under 28 U.S.C. $1331,
their Fourteenth Amendment claim does not stand apart from
their §1983 claim.
wiles
brougnt.® Indeed, $1981 speaks only of the rights
of the person denied the opportunity to make a contract
due to his color—it doesn’t attempt to specify who
may be sued under its provisions. The construction
the Supreme Court placed on the term “person” in
Monroe v. Pape and City of Kenosha v. Bruno as
it is used in $1983 was based entirely on the legislative
history of that section, which was passed by the Con-
gress entirely separately from §1981. In our view the
statutory construction of §1983’s use of a specific word
does not constitute a blanket prohibition against civil
rights suits against municipalities based on other code
sections which don’t even contain the same limiting
language.”
In our view there is no operational distinction in
this case between liability based on Title VII and
$1981. §1981 has been construed to bar discrimination
in employment by every Circuit which has considered
the question. Waters v. Wisconsin Steel Works of Inter-
national Harvesters Co., 427 F.2d 476 (7th Cir. 1970),
cert. denied 400 U.S. 911 (1970); Sanders v. Dobbs
Houses, Inc., 431 F.2d 1097 (Sth Cir. 1970), cert.
*42 U.S.C. §1981 provides:
“All persons within the jurisdiction of the United States
shall have the same right in every state . . . to make
and enforce contracts . . . enjoyed by white citizens. . . .”
Arunga v. Weldon, 469 F.2d 675 (9th Cir. 1972) might
be read as applying the jurisdictional limits of §1983 to all
civil rights sections. This two paragraph per curiam does not
explain the reasons for such a holding, if that was in fact
the basis for the holding, and we are reluctant to infer such
a broad and sweeping holding from it. After circulating this
opinion among all the members of this Court, this panel has
been authorized to announce that to the extent this opinion
is inconsistent with Arunga, this latter opinion is the preferred
view of the majority of the members of this Court, as stated
in Sethy v. Alameda Co. Water District, ........ ae adiuen
(9th Cir., en banc, 1976) [No. 73-1852 et seq. slip op’n
Sept. 30, 1976.]
—59—
denied 401 U.S. 948 (1971); Young v. International
Tel. & Tel. Co., 438 F.2d 757 (3d Cir. 1971); Brady
v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 1972);
Brown v. Gaston County Dyeing Machine Co., 457
F.2d 1377 (4th Cir. 1972); Macklin v. Spector Freight
Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973); Long
v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974)."
This line of authority is so well-established the defend-
ants do not even attempt to dispute the applicability
of §1981 to employment discrimination. We join the
seven other Circuits which have considered the question
and hold §1981 is available as a remedy against employ-
ment discrimination based on color.
Accordingly, we believe the district court properly
found the defendants guilty of employment discrimina-
tion. Despite the fact they conceded that the discrimina-
tory effects of the verbal aptitude test they used were
known even prior to the giving of the examination
in 1969, the results of this examination had continued
discriminatory effect as the 187 applicants hired after
1970 were employed on the basis of their success
with the test. The defendants thus practiced discrimina-
tion in hiring which extended into the three year span
subject to liability based on the plaintiffs’ §1981 claim.
As the named plaintiffs were applicants for positions
during this period, the fact that they had not previously
applied in 1969 is irrelevant, and accordingly they
were proper class representatives.
"See generally Comment, Racial Discrimination and Employ-
ment Under the Civil Rights Act of 1866, 36 U.Chi.L.Rev.
615 (1969); Herbert and Reischel, Title VII and the Multiple
Approaches to Eliminating Employment Discrimination, 46
N.Y.U.L. Rev. 449 (1971); Peck, Remedies for Racial Discrim-
ination in Employment, 46 Wash. L.Rev. 455 (1971); Larson,
The Development of Section 1981 as a Remedy for Racial Dis-
crimination in Private Employment, 7 Harv. Rights—Civ. Lib.
L. Rev. 56 (1972).
—_—™=
II. THE 5 FOOT, 7 INCH HEIGHT
REQUIREMENT
Among the practices of the defendants which the
plaintiffs challenged was the 5’7” height requirement.
In Griggs v. Duke Power Co., 401 U.S. 424 (1971)
the Supreme Court unanimously held that Title VII
forbids the use of employment tests which have discrim-
inatory effect unless the employer meets “the burden
of showing that any given requirement fhas] .. .
' a manifest relation to the employment in question.”
401 U.S. at 432. This burden arises only after the
challenger proves that the tests in question have the
effect of selecting applicants for employment or promo-
tion in a racial pattern significantly different from
that of the pool of applicants. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Discrimina-
tory tests are impermissible unless shown “by profession-
ally acceptable methods,” Albermarle Paper Co. v.
Moody, 43 LW 4880, 4888 (1975) to be “predictive
of or significantly correlated with important elements
of work behavior which comprise or are relevant to
the job or jobs for which candidates are being evalu-
ated.” 20 C.F.R. §1607.4(c), EEOC Guidelines.”
Here there can be no question that the 5’7” height
requirement has discriminatory impact. The parties stip-
ulated that 45% of the otherwise eligible Mexican-
American applicants are excluded by the requirement."
These EEOC Guidelines were recently approved by the
Supreme Court in Albemarle Paper Co. v. Moody, 43 LW
4880 (1975) as providing standards by which employment
requirements may be validated.
18We accordingly note that the continuing use of this height
requirement would constitute a continuing violation of Title
VII and would provide a basis for relief under that section
even were §1981 not available. We do not suggest that the
a eee
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unite
The defendants further conceded that no scientifically
approved test has been utilized to determine whether
the height requirement is in fact job related. The only
testimony in the record on point is that of Chief
Stanley E. Barlow, himself only 5’8”, who testified
that he believed a smaller man might have difficulty
working with taller men in removing long ladders and
other equipment, and might have a slower reaction
time in climbing on and off equipment. Chief Barlow
conceded that in the past firemen under 5’7” have
been able to function without impairment due to their
height."*
It seems clear to us that this testimony falls far
short of validating a height requirement which had
a serious impact in restricting Mexican-American em-
ployment in the County Fire Department. The district
court erred in finding that the County had proven
that the height requirement was job related.’*
Ill. AFFIRMATIVE RELIEF
The defendants contest the affirmative relief ordered
by the district court. As this Court has noted,
“There can be little doubt that where a violation
of Title VII is found, the court is vested with
validation requirements of Title VII and §1981 are different,
however. We believe Title VII validation standards may also
be applied in §1981 cases.
“These shorter firemen were employed during World War
II when the standard was relaxed, and when firemen of other
cities automatically joined the L.A. County Fire Department
when their employing cities were annexed by L.A. County.
‘Similar height requirements have been recently struck down
in other cases. See, Fox v. Washington, 43 LW 2468 (D.D.C.
4/22/75); Hardy v. Stumf, 37 Cal. App. 3d 958 (1974).
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) upheld
a height requirement for firemen, but only because the plaintiffs
had failed to prove discriminatory impact upon Puerto Rican
applicants.
—62—
broad remedial power to remove the vestiges of
past discrimination and eliminate present and as-
sure the non-existence of future barriers to the full
enjoyment of equal job opportunities by qualified
black employees.”
United States v. lronworkers Local 86, 443 F.2d
544, 553 (9th Cir. 1971) cert. denied 404 US.
984 (1971). We do not believe the court lacks equal
power under §1981 to order relief.
“In fashioning an appropriate remedy for em-
ployment discrimination, Congress has granted
courts plenary equitable power under both Title
VII. . . and section 1981.”
Pettway v. American Cast Iron Pipe Co., 494 F.2d
211, 243 (Sth Cir. 1974). Although the decided cases
have primarily involved either Title VII or §1983,
and not $1981, we do feel the vast case law under
both sections approving affirmative relief is directly
applicable here. No other case we have found has
involved the same odd factual pattern where only §1981
is available to remedy employment discrimination, and
we see no reason to limit the relief available under
$1981 merely because in the past §1981 and Title
VII have been read in tanden. See, e.g., Boston Chapter,
NAACP v. Beecher, 504 F.2d 1017 (1st Cir. 1975),
cert. denied ........ a (1975); Pettway v. Ameri-
can Cast Iron Pipe Co., supra; Franks v. Bowman
Transportation Co., 495 F.2d 398 (Sth Cir. 1974);
Johnson v. Goodyear Tire and Rubber Co., 491 F.2d
1364 (Sth Cir. 1974). Similarly we note that Title
VII and $1983 cases have frequently been cited as
involving analogous principles in fashioning equitable
relief. See Carter v. Gallagher, 452 F.2d 315, 329
ce heen acai
ee a
EP en te ree ee Nr a
PLOT ee RL a! Rn MS A a ry AR) Bh RR Rr Oe ES 8s
oadaie
ae re vs
—_
(8th Cir. 1971) (en banc reversing in part panel
opinion, 452 F.2d 315) cert. denied 406 U.S. 950
(1972); Rios v. Enterprise Assn. Steamfitters Local
638, 501 F.2d 622, 628 (2d Cir. 1974), and cases
involving one statute have been cited in support of
the relief ordered in cases involving the other.
Fight circuits, including this one, have considered
and approved the use of accelerated hiring goals or
quotas to eradicate the effects of past discrimination
under either Title VII or $1983. United States v.
Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971)
cert. denied 404 U.S. 984 (1971) (Title VII); Boston
Chapter, NAACP v. Beecher, 504 F.2d 1017 (lst
Cir. 1974) (§§1981, 1983 and Title VII); Rios v.
Enterprise Assn. Steamfitters Local 638, 501 F.2d 622
(2d Cir. 1974) (Title VII); United States v. Masonry
Contractors Assn., 497 F.2d 871 (6th Cir. 1974)
(Title VIL); Franks v. Bowman Transportation Co.,
495 F.2d 398 (Sth Cir. 1974) (Title VII); Morrow
v. Crisler, 491 F.2d 1053 (Sth Cir. 1974) (en banc)
(§1983; Associated General Contractors of Massachu-
setts, Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973)
affirming 361 F.Supp. 1293 (D. Mass. 1973) cert.
denied 416 U.S. 957 (1974) (Title VII); Vulcan
Society v. Civil Service Commission, 490 F.2d 387
(2d Cir. 1973) (§1983); Bridgeport Guardians, Inc.
v. Civil Service Commission, 482 F.2d 1333 (2d Cir.
1973); United States v. N.L. Industries, Inc., 479
F.2d 354 (8th Cir. 1973) (Title VII); Contractors
Assn. of Eastern Pennsylvania v. Sec. of Labor, 442
F.2d 159 (:d Cir. 1971) cert. denied 404 U.S. 854
(1971) (Title VII); Pennsylvania v. O’Neill, 473 F.2d
1029 (3d Cir. 1973) (en banc) (§1983): United
States v. Local 212, IBEW, 472 F.2d 634 (6th Cir.
oniitiins
1973) (Title VII); United States v. Wood, Wire and
Metal Lathers International Union Local 46, 471 F.2d
408 (2d Cir. 1973) cert. denied 412 U.S. 939 (1973)
(Title VII); Castro v. Beecher, 459 F.2d 725 (lst
Cir. 1972) (§1983); United States v. Carpenters Local
169, 457 F.2d 210 (7th Cir. 1972) cert. denied 409
U.S. 851 (1972) (Title VII); Carter v. Gallagher,
452 F.2d 337 (8th Cir. 1971) (en banc) cert. denied
406 U.S. 950 (1972) ($1983); United States v. IBEW
Local 38, 428 F.2d 144 (6th Cir. 1970) cert. denied
400 U.S. 943 (1970) (Title VII); Local 53, Asbestos
Workers v. Vogler, 407 F.2d 1047 (Sth Cir. 1969)
(Title VII).'° While the defendants argue §703j of
Title VII forbids the imposition of racial quota hiring,
even were this to be an order premised on Title VII,
we note this view has been uniformly rejected by
the many courts which have considered the question.
We believe the district court properly exercised its
discretion in ordering affirmative action to be under-
taken to erase the effects of past discrimination. We do
not believe that such relief may be limited to the
identifiable persons denied employment in the past—for
“the presence of identified persons who have been
discriminated against is not a necessary prerequisite
to ordering affirmative relief in order to eliminate the
present effects of past discrimination.” Carter v. Gal-
lagher, supra, 452 F.2d at 330.
“Nor are remedial goals limited to any specific
or prescribed form. The precise method of remedy-
ing past misconduct is left largely to the broad
Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) did
not hold to the contrary, but upheld the district court’s refusal
to order the imposition of quotas within the facts of that
case as not being an abuse of discretion.
nS ee
"iia al.
ates
anion
discretion of the district court. Goals have been
expressed in terms of specific numbers or ratios
. .. OF percentages.”
Rios v. Enterprise Assn. Steamfitters Local 638, supra,
501 F.2d at 631. While we remand because the district
court expressly stated that the reason it ordered identi-
cal accelerated hiring of blacks and Mexican-Americans
in equal ratios was because of the validity of the
57” height requirement, we do not necessarily believe
a 1-1-1 ratio was incorrect (indeed, it was the relief
originally requested by the plaintiffs), but the court
should reconsider its order in light of our decision
that the 5’7” height requirement is invalid.
The defendants finally argue that the imposition
of an affirmative order to hire minority applicants
is unnecessary. They argue in effect that they have
already commenced and that they can be relied upon
further to improve their hiring practices without the
added impetus of a court order. Certainly the experience
in the Fifth Circuit is useful in one regard—*“protesta-
tions or repentance and reform timed to anticipate
or blunt the force of a lawsuit offer insufficient assur-
ance that the practices sought to be enjoined will
not be repeated.” Rowe v. General Motors Corp., 457
F.2d 348, 359 (Sth Cir. 1972). Here the record shows
that the defendant had decided to use a similar verbal
aptitude test to hire new candidates in 1973, but that
this decision was revoked only upon being notified
that this suit was to be filed. The Personnel Director
of the defendants testified at length at the trial—and
he acknowledged that as early as 1969 he was aware
of the discriminatory impact of the aptitude test, and
that he had recommended changes in recruitment, but
—- =
that nothing was done on these recommendations. He
further testified that the only reason the aptitude test
wasn’t used in 1973 was due to this suit. This record
hardly supports the view that left to their own devices
the defendants will devise an affirmative action program
as effective as that of the district court’s. We emphasized
that this was not a close case, in the sense that the
disproportion between minority candidates hired and
the proportion of minority persons in the L.A. com-
munity was not grossly out of proportion. In a com-
munity of 28.5% minority population, only 3.5% of
the candidates hired were blacks or Mexican-Americans.
These data are hardly persuasive evidence of the defend-
ants’ good faith-—even were such good faith relevant
in fashioning relief.”
In sum, we believe the district court was wholly
justified in deciding to impose affirmative hiring orders
upon the defendants.
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 essential jobs.
AFFIRMED in part and REVERSED in part and
REMANDED for reconsideration not inconsistent with
this opinion.
17In Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971),
a Title case, the Supreme Court rejected good faith as
a defense—“Congress directed the thrust of the Act to the
consequences of the employment practices, not simply the moti-
vation.” We believe good faith is equally inapplicable to §1981.
~ Oe eer eee ees "
eee reece) erence
—- =
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 repug-
nant to the principles upon which our society is built.
But even in rooting out such an evil practice, we
are bound by certain procedural and jurisdictional limi-
tations which may serve to protect the rights of others.
I think it is clear from the record that the plaintiffs’
challenges to two of the three alleged illegal employment
practices are barred by such a jurisdictional limitation:
the named plaintiffs have no standing to attack the
defendants’ pre-1971 hiring procedures or the height
limitation. While the plaintiffs may nevertheless have
standing to challenge the post-1971 procedures, I ques-
tion whether the imposition of minority hiring quotas
is warranted given the limited scope of this issue.
Because this is a question which should be resolved
in the first instance by the trial judge, however, I
would reverse and remand for reconsideration of the
appropriate remedy in light of the limited standing
of the plaintiffs in this case.
I. Standing to Challenge the Pre-1971 Written Tests
The district court held and the majority affirms
that the plaintiffs made out a prima facie case of
employment discrimination by proving that at the
time the complaint was filed in 1973, only 3.3 percent
of the firemen employed by the defendants were black
or Mexican-American despite the fact that those minori-
ties accounted for approximately 29.1 percent’ of the
1The district court found that 10.8 percent of the population
of Los Angeles County was black and 18.3 percent Mexican-
American.
— =
population of Los Angeles County. These employment
statistics are necessarily the result of the defendants’
pre-1971 hiring practices since no firemen were hired
thereafter until the complaint was filed. As the undis-
puted evidence showed, however, these procedures were
abandoned in 1971 in an effort to correct the fire
department’s racial imbalance. None of the named plain-
tiffs made application before October 1971. Given these
facts, the standing question is simple. Even in cases
of racial discrimination, a showing of injury in fact
or threat of injury in fact from the allegedly illegal
conduct is necessary in order to find standing. Moose
Lodge No. 107 v. Irvis, 407 U.S. 163, 166-68 (1972).
Neither named plaintiffs nor members of the plaintiff
class have suffered or were threatened with any injury
in fact from the pre-October 1971 hiring procedures
and they therefore have no standing to litigate the
legality of those procedures.
The majority atempts to surmount his standing prob-
lem by arguing that the effects of the pre-1971 proce-
dures continued until after the plaintiffs applied for
employment in October 1971. I cannot accept this
argument.
The villain of the pre-1971 procedures was a discrim-
inatory written test used as a ranking device. All hiring
was done from an eligibility list which was the final
product of an examination process. The process began
with the written test and a physical agility test and
the top scorers were then selected for orai interviews.
A total score was given each applicant, with the discrim-
inatory written test having a 35 percent weighted value.
The highest ranking candidates were certified for place-
ment on the eligibility list from which vacancies were
ee
— =
filled. When the list was exhausted, which usually hap-
pened in about two years, a new examination process
would begin in order to produce a new eligibility list.
The last of these examination processes was initiated
in 1969 by the administration of the discriminatory
written test. The majority at page 4, ante, states that
the district court found that the “1969 examination
had continuing effect.” The district court’s Findings
of Fact and Conclusions of Law do not support
the majority’s statement. The district court’s language,
fairly read, establishes what no member of the panel
disputes: discrimination in 1969 and years prior thereto
resulted in a “currently existing racial imbalance in
the workforce of the Los Angeles County Fire Depart-
ment.”* That language does not establish that the dis-
criminatory 1969 examination, or any prior discrimina-
tory practice, adversely affected or “injured in fact”
any of the named plaintiffs in their efforts to secure
employment. Further, it is apparent from the first page
of the Findings of Fact and Conclusions of Law that
they were prepared by the attorneys representing the
class plaintiffs. Thus, even if there were a finding
as suggested by the majority, a careful examination
of the record must be made to determine whether
it would be supported. See United States v. El Paso
Natural Gas Co., 376 U.S. 651, 656-57 (1964); Nissho-
Iwai Co. v. Star Bulk Shipping Co., 503 F.2d 596
(9th Cir. 1974).
The supposed continuing effect of the 1969 examina-
tion apparently stems from the belief that the pool
of applicants produced by this examination somehow
affected the named plaintiffs’ chances of being hired.
2See footnote 5a of the majority opinion.
—-— =
However, the evidence does not support such a finding,
even if made. I find nothing in the record indicating
how many firemen were hired in the years 1970-72.
There is a stipulation that there normally are 100
firemen hired per year. There is also testimony that
the 1969 examination produced a 187-applicant eligi-
bility jist. But there were no findings made on hirings.
These facts may support a finding (if made) that
some firemen were hired from the 1969 test list after
January 11, 1970, and obviate the statute of limitations
problem. But projections from these facts do not support
a finding (which was never made) that any applicants
from the 1969 examination list were hired after October
1971 when the named plaintiffs applied or, more im-
portantly, after the January 1972 test when they became
eligible for oral interviews and eventual certification
for appointment. Indeed, assuming 100 hirings per year,
the 187-applicant 1969 list would have been exhausted
some time in early 1971.
The only other evidence in the record, through mea-
ger, supports this view of the facts. First, Mr. Nesvig,
the Los Angeles County Personnel Director, was asked
why in December 1972 they decided to interview only
the top 544 scorers on the 1972 test even though
they knew that would have a disproportionate detri-
mental effect on minorities. His response was: “We
were desperate, in my opinion. . . . We had gone
for almost two years |i.e., since early 1971] with
many vacancies . .. .” Later, Mr. Barlow, Chief
Deputy Engineer and the number two man in the
Los Angeles County Fire Department, was asked why
they had not had any affirmative action since 1971.
His response: “We did not have a list to hire off
of, and our first class off of this [the current] list,
which examination [meaning the entire process from
initial application to eligibility list] started in 1971,
. .. Was not started until April 9 [1973 ].”
Thus I think it clear that the pre-1971 procedures
had no impact on the named plaintiffs in this case.
They therefore have no standing to challenge those
procedures and the district court did not have jurisdic-
tion to consider the results of those examinations.
II. The Challenge to the Post-1971 Procedures
As noted above, prior to accepting applications for
a new examination procedure in 1971, the entire proce-
dure was changed. Since the named plaintiffs’ applica-
tions were processed under these new procedures, they
clearly have standing to litigate the legality of these
procedures. Given the limited scope of the claim, how-
ever, I question the appropriateness of the sweeping
injunctive relief granted.
The new procedures were to be as follows. Written
tests were to be eliminated as a ranking device, but
because of the large number of applicants (3500)
and the relatively few job openings (33), some method
had to be adopted to limit the number of applicants
interviewed. Thus a new written test was designed
in an attempt to eliminate cultural bias. The test was
to be given and graded on a pass-fail basis for the
sole purpose of screening out illiterates. Five hundred
of the passing applicants were to be selected at random
for oral interviews. This method eliminated the written
test as a ranking device and gave every passing appli-
cant an equal opportunity to be chosen for an oral
interview. Ninety-seven percent of the applicants passed
the written test; 1,885 were white, 170 black and
283 Mexican-American. The passing applicants were
iio
to be ranked solely on the basis of the results of
the physical agility test and the oral interviews.
After administration of the written test, but before
the random selection could be made, a lawsuit was
filed in state court against the county, charging that
the random selection process violated provisions of the
county charter and civil service regulations requiring
that selection for oral interviews be made on merit.
The county was enjoined from using this method pend-
ing trial on the merits. As a result, the examination
process was halted for over two years and no interviews
or physical tests were given and no eligibility list was
certified.
As vacancies increased, the county fire department
urged that the applicants, who by this time had been
waiting for almost 18 months, be interviewed and an
eligibility list certified. In desperation, the county De-
partment of Personnel proposed to interview those appli-
cants who had received the top 544 scores on the
1972 written test. Of this number, 492 were white,
10 black and 33 Mexican-American. The applicants
were not to be ranked on the basis of the test results,
however, and the interviews were not intended to elimi-
nate the remaining applicants from consideration. The
purpose was solely to expedite the hiring of sufficient
firemen to meet the immediate, urgent requirements
of the fire department.
The plaintiffs herein objected to this proposal. Upon
learning of the complaint about to be filed in this
action, the Director of Personnel abandoned the plan
and implemented a new procedure whereby all of the
passing applicants would be interviewed. The interviews
commenced on January 20, 1973.
anion
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 discrimina-
tion in violation of 42 U.S.C. §§ 1981 and 1983.
The defendants completed interviewing all of the appii-
cants by the end of March 1973 and certified an
eligibility list. Of the top 315 applicants on this list,
210 were white, 39 black, 59 Mexican-American and
7 of other races (a total of 33.5 percent minorities).
It was conceded by the plaintiffs that this examination
and ranking procedure did not have a discriminatory
impact on blacks and Mexican-Americans.
At the conclusion of the trial, the district court
specifically found that the defendants had not interfered
with affirmative action efforts designed to increase black
and Mexican-American participation rates and that,
to the contrary, several officials had engaged in efforts
designed to increase minority representation in the fire
department. The court further found that neither the
defendants nor their officials had engaged in employ-
ment practices with a willful or conscious purpose
of excluding blacks and Mexican-Americans from em-
ployment.
The court concluded, however, that the defendants
had failed to take the necessary affirmative action
to overcome the existence in the minority community
of a discriminatory reputation and had engaged in
the discriminatory employment practice of utilizing as
a selection device non-validated written tests that had
a disproportionate detrimental impact on blacks and
Mexican-Americans. I agree with the majority that
the subjective discriminatory reputation of the fire de-
a, 7
partment cannot be the basis of a valid section 1981
claim.
The challenge to the use of the 1972 written test
as a selection device is appropriate under section 1981.
The claim is not mooted by the decision, prompted
by the filing of this lawsuit, not to use the written
test as a selection device but instead to interview all
the applicants. United States v. W.T. Grant Co., 345
U.S. 629, 632-33 (1953). There is nothing per se
wrong with written employment tests; violation of sec-
tion 1981 occurs only when the test is found to have
a disproportionate detrimental impact on a minority
group and has not been sufficiently validated as reason-
ably related to job performance. See Griggs v. Duke
Power Co., 401 U.S. 424 (1971). Here, the district
court found that the 1972 test violated the Griggs
standard and I cannot conclude that the finding was
clearly erroneous.
Even if the plaintiffs have established a section 1981
violation with respect to the defendants’ use of the
1972 written test results, however, that violation does
not necessarily justify the imposition of minority hiring
quotas on the defendants. The use of quotas must
be carefully weighed. As the Supreme Court stated
in Griggs:
Congress did not intend by Title VII [and inferen-
tially by section 1981], however, to guarantee
a job to every person regardless of qualifications.
In short, the Act does not command that any
person be hired simply 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,
eee
=— =
is precisely and only what Congress has proscribed.
What is required by Congress is the removal of
artificial, arbitrary, and unnecessary barriers to
employment when the barriers operate invidiously
to discriminate on the basis of racial or other
impermissible classification.
Id. at 430-_1.
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 population of 10.8
percent and 18.3 percent. Imposition of this hiring
quota may well result in discrimination against equally
or better qualified applicants solely on account of their
race. Here, for example, a native American Indian,
Asian-American, Hungarian-American or Polish-Ameri-
can may not be hired in order to provide a job for
a black or Mexican-American. While quotas are some-
times necessary to correct past discrimination against
certain groups, the possible prejudicial effects on others
must be weighed closely by the district court.*
5See McDonald v. Santa Fe Trail Transp. Co., ........ US.
eames (June 25, 1976) (section 1981 and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§2000e ef seg., prohibit
racial discrimination in private employment against white persons
upon the same standards as racial discrimination against non-
whites). Cf. Franks v. Bowman Transp. Co., ........ FR
ae (March 24, 1976) (Burger, C.J., concurring and dissent-
ing) (white employees injured by award of retroactive seniority
to nonwhites may petition for equitable relief on their own
behalf).
I agree, of course, that equitable relief to rectify past discrim-
ination will often impose burdens on those innocent of any
discriminatory activity. Franks v. Bowman Transp. Co., supra,
nial U.S. at ....... (slip op. at 24-30). But the equitable
reliet should be tailored only to ameliorating the effects of
past unlawful discrimination. See id.; note 4 infra.
—
Thus, in a recent case very similar to this one,
the Second Circuit reversed the district court’s imposi-
tion of quotas as unwarranted. Kirkland v. New York
State Department of Correctional Services, 520 F.2d
420 (2d Cir. 1975). The case involved a challenge
to the use of a discriminatory written test as a basis
for promotion under a civil service system. The plain-
tiffs challenged the disproportionate impact only of
the most recent test and made no claim of bad faith
or intentional discrimination. The district court ordered
the defendants to develop a validated non-discrimina-
tory promotion procedure and imposed promotion
quotas to cure the effects of past discrimination. The
Second Circuit upheld the order to develop a non-
discriminatory procedure, but with respect to the imposi-
tion of quotas, held that “[i]n view of the limited
scope of the issues framed in this class action. . .
the imposition of permanent quotas to eradicate the
effects of past discriminatory practices is unwarranted.”
Id. at 428 (footnote omitted ).*
Here, the district judge obviously imposed the quotas
to overcome the effects of the pre-1971 procedures
because at the time the suit was commenced, there
had been no hiring based upon the 1972 written test.
Since the plaintiffs had no standing to challenge these
‘The court also noted that the quotas would unnecessarily
nullify the state constitutional provisions requiring that promo-.
tions be made from the top three officers on the eligibility
list, a decision which should be left to “the people speaking
through their legislators.” Id. at 429.
See also Chance v. Board of Examiners, 534 F.2d 993 (2d
Cir. 1976) (racial quotas in public employment layoffs not
designed to remedy past discrimination are not authorized under
section 1981 or Title VII); accord, Weber v. Kaiser Alum.
& Chem. Corp., ........ F.Supp. ........ (E.D. La. 1976), 45
U.S.L.W. 2018 (Title VII in private employment context).
—T7—
pre-1971 procedures, I would reverse and remand the
case to the district court for reconsideration of the
appropriateness of quotas in this case. It is clear to
me that the court can fashion an order prohibiting
any discriminatory use of the 1972 test results directly
without imposing quotas.
Ill. The Height Limitation
The only issue remaining is that pertaining to the
height limitation. It comes to us by a curious route.
The plaintiffs phrase their request for relief as follows:
The only modification of the Judgment sought
on this appeal is an increase in the Mexican-
American hiring ratio, such increase 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 enjoining the use
of the 5’7” height standard.
If the plaintiffs have never put the legality of the
height limitation in issue, I do not see how the district
judge abused his discretion in taking the height limita-
tion into account in fashioning the remedy.
But even if the issue is before us, there is once
more a complete absence of parties having standing to
pursue it. None of the named plaintiffs are alleged
to be under 5’7”. To the contrary, it has been stipulated
that all named plaintiffs are present employees or pres-
ently on an eligibility list. Since one of the requirements
is a minimum height of 5’7”, each of them must
be at least that tall. Consequently, none of them have
suffered an injury in fact from the alleged discrimina-
tory practice.
—13—
Although the class was certified as “all present and
future . . . Mexican-American applicants,” some of
whom may be less than 5’7” tall, the named plaintiffs
cannot represent them because their interests are an-
tagonistic. Fed. R. Civ. P 23(a)(3), (4). Applicants
5’7” and taller have an interest in limiting the number
of their competitors by retaining the height require-
ment. This may be the reason why the plaintiffs did
not ask that the height limitation be enjoined but
merely now seek a larger hiring quota for Mexican-
Americans in spite of it.
I would therefore reverse and remand.
= =
APPENDIX G.
Van Davis et al., Plaintiffs-Appellants, v. County
of Los Angeles et al., etc., Defendants-Appellees.
Van Davis et al., Plaintiffs-Appellees, v. County
of Los 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, 1978.
Affirmed in part, reversed in part and remanded.
Wallace, Circuit Judge, dissented with an opinion.
Before TUTTLE,* HUFSTEDLER and WAL-
LACE, Circuit Judges.
TUTTLE, Circuit Judge:
This Court entered its original opinion in this case
on October 20, 1976. The Court thereafter granted
defendants-cross-appellants’ motion for rehearing, and
the case was regularly set down for rehearing and
oral argument. Although the principal basis for the
rehearing motion was the Supreme Court’s decision
in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040,
48 L.Ed.2d 597 (1976), the parties were permitted
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 Mexican-American applicants for posi-
*Honorable Elbert P. Tuttle, Senior United States Circuit
Judge, Fifth Circuit, sitting by designation.
enfin
tions as firemen with the Los Angeles County Fire
Department,’ alleging that the defendants Los Angeles
County, the County Board of Supervisors and the Coun-
ty Civil Service Commission had been guilty of racial
discrimination 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-Ameri-
cans grossly out of proportion to their number in
the population of Los Angeles County. The court fur-
ther found that the Fire Department, despite its ad-
mitted 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 accelerated hiring of
racial minorities in a ratio of one black and one
Mexican-American applicant for each three white appli-
cants until the effects of past discrimination had been
erased.” -
Despite the fact that the Mexican-American popula-
tion of Los Angeles County was approximately double
the size of the black population, the district court
'The plaintiff class also included all present and future black
and Mexican-American employees of the Fire Department, who
alleged racial discrimination in connection with defendants’ pro-
motion practices. These additional allegations, however, were
abandoned prior to trial.
2Jurisdiction was based on 28 U.S.C. § 1343.
8Data introduced by the plaintiffs showed that this 1-1-3
ratio, given the present rate of hiring would produce a work
force of minority firemen in proportion to the number of
minority persons in the community by 1979 for blacks and
1983 for Mexican-Americans.
ss
—
ordered identical accelerated hiring for both groups
due to its finding that the Fire Department’s 5’7”
height requirement for job applicants was a valid re-
quirement for employment and that this height require-
ment had the effect of eliminating 41% of the otherwise
eligible Mexican-American applicants from considera-
tion.
The plaintiffs appeal the trial court’s finding that
the 57” height requirement is valid and could therefore
be used in limiting 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 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 device ior entry level positions and
its order of accelerated hiring to cure past racial dis-
crimination; we disagree with the court’s findings that
plaintiffs have standing to challenge defendants’ pre-
1971 use of an unvalidated written test as a selection
device and that the 5’7” height requirement has been
sufficiently validated by the defendants. Accordingly,
we reverse and remand for reconsideration of the proper
ratio of accelerated racial hiring to be ordered.
I. Written Examination Procedures
Despite a minority population of approximately
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 al-
leged, and the trial court found, that this severe racial
imbalance resulted in part from the defendants’ utiliza-
tion of unvalidated written examinations to rank appli-
cants for positions 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 minor-
ity applicants. Of the 244 blacks who took the 1969
examination, 5 were hired; of thie 100 Mexican-Ameri-
cans, 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-
American, based on the results of this test only 6.4%
of the hires were minorities. Black and Mexican-Ameri-
can applicants fared no better on the 1972 examination.
Specifically, 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 established a
prima facie case of racial discrimination in employment,
thereby shifting the burden to the defendants to establish
that the tests were job-related.‘ We agree that defend-
ants failed to satisfy their burden.”
‘The cases holding that statistics alone may prove a prima
facie case of employment discrimination, thereby shifting the
burden to the defendants to justify the racial imbalance, are
by this time legion. See, e.g., United States v. Masonry Con-
tractors Ass’n of Memphis, Inc., 497 F.2d 871, 875 (6th
Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494
F.2d 211, 225 (Sth Cir. 1974); United States v. N. L. Indus.,
Inc., 479 F.2d 354, 368 (8th Cir. 1973); United States v.
Hayes Int'l Corp., 456 F.2d 112, 120 (Sth Cir. 1972); United
States v. Ironworkers Local 86, 443 F.2d 544, 550-51 (9th
Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.
2d 367 (1971).
SDefendants conceded that no studies establishing the validity
of the written employment tests have been conducted in accord-
ance with “professionally acceptable methods.” See Albemarle
Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d
280 (1975).
alin
Defendants have challenged the plaintiffs’ 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 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 an eligibility list following the 1969
test. Based on these facts, we must conclude that
the 1969 list was depleted before plaintiffs applied
for employment as firemen.
In the absence of a statute expressly conferring stand-
ing, it is well 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, ¢.g.,
Linda S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct.
1146, 35 L.Ed.2d 536 (1973); Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965,
32 L.Ed.2d 627 (1972); Flast v. Cohen, 392 US.
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 defendants’ prior use of
the test in 1969.°
*Our holding on this point makes it unnecessary 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 plaintiffs from
attacking the defendants’ pre-1971 hiring procedures.
It is equally clear that defendants’ decision to employ the
1972 written test as a selection device was an unlawful employ-
ment practice which had adverse impact on the racial class
of plaintiffs. The plaintiffs thus have standing to litigate the
lawfulness of the 1972 test.
= Ss
As previously indicated, the district court reached
the conclusion that defendants’ use of unvalidated writ-
ten examinations was an illegal employment practice
through application 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 unconstitutional employment discrimination, discrim-
inatory intent or purpose must be shown rather than
or in addition to a statistical showing of disproportionate
impact. Defendants interpret Washington to require
similar proof in cases alleging employment discrimina-
tion under § 1981. Accordingly, defendants urge us
to reverse the decision of the district court, since no
showing was made that defendants administered the
1972 examination with any intent or purpose to discrim-
inate agaiiist minority applicants. The issue presented
is one of first impression in this Circuit.’ We have
7Only four other Courts of Appeals have had occasion to
apply or construe the decision in Washington. The Court of
Appeals for the D.C. Circuit has stated that a plaintiff proceeding
under Title VII and § 1981 need not show the type of pu -
ful or intentional discrimination required to establish a viola*ion
of the Equal Protection Clause. Kinsey v. First Regional Secur-
ities Inc., 557 F.2d 830 (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 examination violated the Fourteenth
Amendment solely because the plaintiffs failed to satisfy the
pu ful discrimination requirement of Washington. Id. at
485. The City of Chicago plaintiffs also had alleged that the
examination violated § 1981, and defendants here contend that
the appeals court — § 1981 with the Fourteenth Amend-
ment for purposes of determining the burden of proof applicable
to non-Title VII actions. The City of Chicago court, however,
made no mention of § 1981 in reversing the district court’s
ruling but specifically held that the defendants’ hiring and pro-
motion policies “did not violate the Constitution.” Id. (emphasis
added).
(This footnote is continued on next page)
— =
carefully reviewed the Court’s opinion in Washington
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-—‘“Test 21”—administered
to persons seeking employment with the D.C. Metropoli-
tan Police Department. The plaintiffs alleged that Test
21 excluded 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 US. at
233, 96 S.Ct. 2040. Following various preliminary pro-
ceedings before the trial court, plaintiffs moved for
partial summary judgment on their constitutional claim
In Chicano Police Officer's Ass'n. v. Stover, 526 F.2d 431
(10th Cir. 1975), an employment discrimination action alleging
violations of the Equal Protection Clause, §§ 1981, 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. . . .” Id. at 438. (citations omitted). Subsequently,
the Supreme Court granted certiorari, vacated the judgment
and remanded for reconsideration in light of Washington v.
Davis. Stover v. Chicano Police Officer's Ass'n, 426 U.S.
944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976). Defendants
here argue that had tie Supreme Court intended the adverse
impact rule of Title VII to apply to § 1981 actions after
Washington, the Court simply would have denied certiorari
in Stover and allowed the judgment to stand on the basis
of a violation of § 1981 alone. However, neither the district
court nor the court of appeals in Stover ever found that defend-
ants had violated § 1981. Further, it is clear that the Supreme
Court’s action was necessitated by the court of appeal’s failure
to distinguish causes of action under §§ 1981 and 1983 in
equating the “Civil Rights Act” and Title VII. And although
the case was eventually remanded 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. Bailard, 12 E.P.D. € 11,224 (6th Cir.
1976) (per curiam), the court vacated an earlier decision
and remanded for reconsideration in light of Washington. The
per curiam opinion, however, did not discuss the issue now
before us and did not explain the rationale underlying the
court’s decision.
— =
alone. Defendants also moved for summary judgment,
asserting that plaintiffs were entitled to relief on neither
constitutional nor statutory grounds. The district court,
after finding that plaintiffs’ statistical showing of dispro-
portionate impact established 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 defendants’ and denied plaintiffs’ motions. /d.
at 18.
On appeal, plaintiffs argued that their summary judg-
ment motion, which rested on purely constitutional
grounds, should have been granted. The Court of Ap-
peals for the D.C. Circuit agreed and reversed. Davis
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 VII standards formulated
in Griggs, the appeals court agreed that plaintiffs’ statis-
tical 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 defend-
ants. 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 acceptable substi-
tute” for the job-relatedness showing required by Griggs.
Id., 168 U.S. App.D.C. at 48-49, 512 F.2d at 962-
63. Concluding that it was not, the court directed
that plaintiffs’ motion for partial summary judgment
be granted and the defendants’ motions denied.
The Supreme Court reversed, concluding that plain-
tiffs “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 stand-
ards applicable to Title VII cases in resolving the
constitutional issue before it, we reverse . . . .” Id.
at 238, 96 S.Ct. at 2046 (emphasis added). In holding
that proof of racially discriminatory 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 unconstitutional solely because
it has a racially disproportionate impact.” Jd. at 239,
96 S.Ct. at 2047. It is significant that throughout
this discussion of “constitutional standards” and “Con-
stitution-based claims,”* the Court mentioned neither
§ 1981 nor cases construing that statute.’ Nor can
*The language used by the Court clearly indicates that Part
II of the opinion was directed solely toward claims of unconstitu-
tional employment discrimination. The following passages are
illustrative: (1) “We have never held that the constitutional
standard for adjudicating claims of invidious racial discrimination
is identical” to the Title VII standards. 426 U.S. at 239,
96 S.Ct. at 2047 (emphasis added); (2) “This is not to
say . . . that a law’s disproportionate impact is irrelevant
in cases involving Constitution-based claims of racial discrimina-
tion.” Id. at 241, 96 S.Ct. at 2048 (emphasis added); (3)
“Disproportionate impact . . . is not the sole touchstone of
an invidious racial discrimination forbidden by the Constitution.”
Id. at 242, 96 S.Ct. at 2049 (emphasis added); (4) “We
are not disposed to adopt [the] more 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).
*Defendants contend that the Washington majority “Specifi-
cally refer{red] to several § 1981 cases and note[d] their
disagreement with the appellate court's reliance upon the Title
VII standards of proof.” The Court did note its disapproval
of several cases but explained that it was in disagreement
(This footnote is continued on next page)
afties
it be said that in resolving the equal protection question
before it, the Court necessarily resolved the § 1981
claim on the same basis.
During recent history, every court which has con-
sidered the question has construed § 1981 to bar dis-
crimination in employment. See Long v. Ford Motor
Co., 496 F.2d 500 (6th Cir. 1974); Macklin 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 (8th 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 (Sth Cir. 1970), cert. denied, 401
U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971);
Waters v. Wisconsin Steel Works of Intl 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 principles
as a benchmark not only in cases involving alleged
discriminatory impact. see Wade v. Mississippi Coop.
Extension Serv., 528 F.2d 508, 516-17 (Sth Cir. 1976);
King v. Yellow Freight Sys., Inc., 523 F.2d 879, 882
(8th Cir. 1975); Kirkland v. New York State Dept.
of Correctional Servs., 520 F.2d 420, 425 (2d Cir.
1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50
L.Ed.2d 84 (1976); Barnett v. W. T. Grant Co.,
518 F.2d 543, 549 (4th Cir. 1975), but in other
only “to the extent that those cases rested on or expressed
the views that proof of discriminatory racial purpose is unneces-
sary in making out an equal protection violation.” 426 U.S.
at 245, 96 S.Ct. at 2050 (emphasis added). Furthermore,
each case cited in this context involved, in addition to a
§ 1981 claim, a claim under either the Equal Protection Clause
or § 1983.
—so—
contexts as well. See, e.g., Flowers v. Crouch-Walker
Corp., 552 F.2d 1277, 1281 & n. 3 (7th Cir. 1977)
(discriminatory discharge of employee); McCormick
v. Attala County Bd. of Educ., 541 F.2d 1094, 1095
(Sth Cir. 1976) (per curiam) (available remedies).
Indeed, the Supreme Court has recognized that Title
VII and § 1981 embrace “parallel or overlapping reme-
dies against discrimination.” Alexander v. Gardner-
Denver Co., 415 US. 36, 47 & n. 7, 94 S.Ct.
1011, 1019, 39 L.Ed.2d 147 (1973). In the
absence of any express pronouncement from the
Supreme Court—a pronouncement not delivered in
Washington—we are unwilling to deviate from this
established practice. Any unnecessary deviation not only
could produce undesirable substantive law conflicts,
see Waters v. Wisconsin Steel 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 em-
ployees subjected to the unlawful discriminatory con-
duct of their employers. Thus, we 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 discrimina-
tion under § 1981." In our view, there remains
no operational distinction in this context between lia-
bility based upon Title VII and § 1981.
The defendants further argue that the district court
lacked jurisdiction under either §§ 1981 or 1983 to
“Accord, League of Latin American Citizens v. City of
Santa Ana, 410 F.Supp. 873 (C.D.Cal. 1976). But see Ortiz
v. Bach, 14 F.E.P. Cases 1019 (D.Colo. 1977). Johnson vy.
Hoffman, 424 F.Supp. 490 (E.D.Mo. 1977); Resident Advisory
Bd. v. Rizzo, 425 F.Supp. 987 (E.D.Pa. 1976).
—90—
decide these claims. As to § 1983, the defendants
are clearly correct. A municipality is not a “person”
suable under § 1983," and thus the three municipal
defendants are not subject to 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 defendants were
named in this suit, the plaintiffs’ § 1983 claim is
barred.” Section 1981, however, is not subject to
the same jurisdictional limitations. See Sethy v. Alameda
County Water Dist., 545 F.2d 1157 (9th Cir. 1976)
(en banc).
In summary, we believe the district court properly
found defendants’ use of the 1972 written examination
as a selection device to be a violation of § 1981.
Plaintiffs produced overwhelming statistical data to es-
tablish the test’s disproportionate impact upon minority
applicants, and the defendants were unable to validate
1142 U.S.C. § 1983 provides:
“Every person who, under color of any statute... of
any State . . . subjects . . . any citizen of the United States
. . . to the deprivation of any rights . . . secured by the Consti-
tution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceedings for redress.”
(emphasis added).
Individuals may be sued in their official capacity. See
Sterzing v. Fort Bend Independent School Dist., 496 F.2d
92, 93 n. 2 (Sth Cir. 1972); United Farmworkers of Florida
Housing Project, Inc. v. City of Del Ray Beach, 493 F.2d
799, 802 (Sth Cir. 1974); Harper v. Kloster, 486 F.2d 1134,
1138 (4th Cir. 1973). As the Dt wy did not allege federal
_—_ jurisdiction under 28 U.S.C. § 1331, their Fourteenth
nendment claim does not stand apart from their § 1983
claim. Although it should be clear, we also note that since
no purposeful or intentional discrimination by the defendant
was proved, plaintiffs’ Fourteenth Amendment and § 1983 causes
of action could not have been sustained under Washington.
wre
—9j—
the test in terms of job-relatedness.’* Defendants’ deci-
sion, prompted solely by the filing of this lawsuit,
to abandon the written 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)."
Il. The 5 Foot, 7 Inch
Height Requirement
Among the other of defendants’ practices challenged
by the plaintiffs was the 5’7” height requirement. In
Dothard v. Rawlinson, .... U.S. ..... 97 §.Ct. 2720,
53 L.Ed.2d 786 (1977), the Supreme Court held that
Title VII forbids the use of height requirements which
have discriminatory effect unless the employer meets
“the burden of showing that [the] requirement [has]
... a manifest relation to the employment in question.”
Id. at 2726, quoting Griggs v. Duke Power Co., 401
U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Here, there can be no question that the 5’7” height
requirement has discriminatory impact. The parties stip-
ulated that 41% of the otherwise eligible Mexican-
183Jn Part III of the opinion in Washington v. Davis, the
majority agreed with the district court’s conclusion that Test
21 had been sufficiently validated by a validation study and
other 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. 2040. It is at least arguable that by not
requiring the defendants to meet the job-relatedness standards
of Title VII, the Court implicitly held that employers sued
under § 1981 may escape liability by showing something less
than job-relatedness. We need not address that question here,
since defendants’ proof not only is insufficient under Griggs,
but also falls far short of the quality and quantity of proof
offered in Washington.
14Qf course, this continued threat to use the 1972 test
as part of the selection process right up to the filing of the
complaint in this case as admittedly a violation of Title VII.
—92—
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-related. The only
testimony in the record on point is that of Chief Stan-
ley E. Barlow, himself only 58”, who testified that
he believed a small man might have difficulty working
with taller men in removing long ladders and other
equipment and might have a slower reaction time in
climbing on and off equipment. Chief Barlow conceded
that in the past firemen under 5’7” have been able
to function without impairment due to their height.”*
It seems clear to us that this testimony falls far
short of validating a height requirement which has
a serious impact in restricting Mexican-American em-
ployment in the County Fire Department.” The dis-
trict court did not have the benefit of Dothard, 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. Accordingly, the district court’s
finding of job-relatedness must be reversed.
Ill. Affirmative Relief
The defendants contest the affirmative relief ordered
by the district court. However, as this Court has noted,
16We accordingly note that the continuing use of this height
requirement constitutes a continuing violation of Title VII and
provides a basis for relief in addition to § 1981.
16These shorter firemen were employed during World War
II when the standard was relaxed, and when firemen of other
cities automatically joined the L.A. County Fire Department
when their employing cities were annexed by L.A. County.
17Our earlier comments with respect to validation of employ-
ment criterion challenged under § 1981 are equally applicable
in this context. See note 15, supra.
—93—
“[t}here can be little doubt that where a viola-
tion of Title VII is found, the court is vested
with broad remedial power to remove the vestiges
of past discrimination and eliminate present and
assure the non-existence of future barriers to the
full enjoyment of equal job opportunities by quali-
fied 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 relief. Indeed, “[i]n fashioning an
appropriate remedy for employment discrimination,
Congress has granted courts plenary equitable power
under both Title VII . . . and section 1981.” Pettway
v. American Cast Iron Pipe Co., 494 F.2d 211, 243
(Sth Cir. 1974) (footnotes omitted). Although the
decided cases have primarily involved either Title VII
or § 1983, and not § 1981, we feel the extensive
case law under both sections approving affirmative
relief 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, Inc.
v. Beecher, 504 F.2d 1017 (ist 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 (Sth 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). Similarly, we note
that Title VII and § 1983 cases frequently have been
—94—
cited as involving analogous principles in fashioning
equitable relief, see Rios v. Enterprise Ass’n Steamfitters
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 discrimi-
nation. See Boston Chapter, NAACP, Inc. v. Beecher,
504 F.2d 1017 (list Cir. 1974), cert. denied, 421
U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975)
(§§ 1981 & 1983, Title VII); Rios v. Enterprise
Ass'n Steamfitters Local 638, 501 F.2d 622 (2d Cir.
1974) (Title VII); United States v. Masonry Contrac-
tors Ass'n of Memphis, Inc., 497 F.2d 871 (6th Cir.
1974) (Title VII); Franks v. Bowman Transp. Co.,
495 F.2d 398 (Sth Cir. 1974), modified, 424 U.S.
747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)
(Title VII); Morrow v. Crisler, 491 F.2d 1053 (5th
Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct.
173, 42 L.Ed.2d 139 (1974) (§ 1983); Vulcan Society
v. Civil Serv. Comm'n, 490 F.2d 387 (2d Cir. 1973)
(§ 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 VIL); Bridgeport Guardians, Inc. v. Civil Serv.
Comm'n, 482 F.2d 1333 (2d Cir. 1973) ($$ 1981,
1983); United States v. N.L. Indus., 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.
onfiiun
2d 634 (6th Cir. 1973) (Title VII); United States v.
Wood Lathers Local 46, 471 F.2d 408 (2d Cir.), cert.
denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398
(1973) (Title VIL); Castro v. Beecher, 459 F.2d 725
(1st Cir. 1972) (§ 1983); United States v. Carpenters
Local 169, 457 F.2d 211 (7th Cir.), cert. denied, 409
U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972) (Title
VIL); 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. lronworkers 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); Contractors Ass’n of
Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (3d
Cir.), cert denied, 404 U.S. 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.
943, 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 defendants
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 uniformly rejected by the many courts which have
considered the question.
We believe the district court properly exercised its
discretion in ordering affirmative action to be under-
taken to erase the effects of past discrimination. We
do not believe that such relief may be limited to
the identifiable persons denied employment in the past
18Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) did
not hold to the contrary, but upheld the district court’s refusal
to impose quotas within the facts of that case as not being
an abuse of discretion.
onium
—for “the presence of identified persons who have
been discriminated against is not a necessary prereq-
uisite to ordering affirmative relief in order to elimi-
nate the present effects of past discrimination.” Carter
v. Gallagher, 452 F.2d at 330.
Nor are remedial goals limited to any specific
or prescribed form. The precise method of remedy-
ing past misconduct is left largely to the broad
discretion of the district court. Goals have been
expressed in terms of specific numbers or ratios
... OF percentages....
Rios v. Steamfitters Local 638, 501 F.2d at 631 (cita-
tions 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 ratios
was because of the validity of the 5’7” height require-
ment, we do not necessarily believe a 1% ratio was
incorrect. The court, however, should reconsider its
order in light of our decision that the 5’7” height
requirement is invalid and that plaintiffs lacked standing
to challenge defendants’ use of the 1969 written exami-
nation.
The defendants finally argue that the imposition of
an affirmative order to hire minority applicants is
unnecessary. They argue in effect that they have already
commenced and that they can be relied upoin further
to improve their hiring practices without the added
impetus of a court order. The experience of the Court
of Appeals 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 insuf-
ficient assurance that the practices sought to be enjoined
— =
will not be repeated.” Rowe v. General Motors Corp.,
457 F.2d 348, 359 (Sth Cir. 1972); accord, United
States v. Oregon State Medical Soc’y, 343 U.S. 326,
333, 72 S.Ct. 690, 96 L.Ed. 978 (1952). Here the
record shows that the defendants had decided to use
an unvalidated verbal aptitude test to hire new candi-
dates in 1973 and that the only reason the test was
not used was notice of this suit. The personnnel
director of the defendants testified at length at the
trial and acknowledged that he was aware of the dis-
criminatory impact such a test would have. Further,
the trial judge found that defendants had failed and
refused to take necessary affirmative steps to overcome
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 employed by
defendants were black or Mexican-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 district court
that an accelerated hiring order is the only way “to
overcome the presently existing effects of past discrimi-
nation within a reasonable period of time.”
In sum, we believe the district court was wholly
justified in deciding to impose affirm
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