Petitioners Brief — County of Los Angeles v. Davis
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IN THE
Supreme Court of the United Sta
October Term, 1978
No. 77-1553
COUNTY OF LOS ANGELES: BOARD OF SUPERVISORS
OF THE COUNTY OF LOS ANGELES: and CIVIL SERV-
ICE 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, WILLIE C.
BURSEY, ELIJAH HARRIS, JAMES W. SMITH, WILLIAM
CLADY, STEPHEN HAYNES, JIMMIE ROY TUCKER,
LEON AUBRY, RONALD CRAWFORD, JAMES HEARD,
ALFRED R. BALTAZAR, OSBALDO A. AMPARAH, in-
dividually and on behalf of all others similarly situated,
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit.
BRIEF FOR COUNTY OF LOS ANGELES, et al.,
PETITIONERS.
JOHN H. Larson,
County Counsel,
WILLIAM F. STEWART,
Chief, Labor Relations Division,
648 Hall of Administration,
Los Angeles, Calif. 90012,
(213) 974-1829,
Attorneys for Petitioners.
Patker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
SUBJECT INDEX
Page
Opinion and Judgnient Below ............ siesiiiiepiditinaledeaiiaish |
FRR Renee Renee EPO RC Ne ae 2
Constitutional and Statutory Provisions Involved ..... 2
BE IID 15. iss nei ctrseonanccuiidbeapiapabanioaninns 2
ee 3
i Pe capceiinninaineienaninnanatnisinn 5
I ic cccectairhiai ada iceclsindeshcsmtmneinndiapiommiaiiinn 8
NS Ie III Siviepeevicencsdinictncecncnacienaiinleicntints 10
FPR RENEE LIN STS Tee eee ecg Sen ae at FFE HEE Mr 14
I
Constitutional, Not Title VII, Standards of Dis-
crimination Govern Claims Under 42 U.S.C.
Sec. 1981; Purposeful Discrimination Is the
Correct Criterion for Adjudging a Violation
Be iy I oteecatee coke caseehieeans a
A. Section 1981 Is a Separate and Distinct
Equal Protection Statute Whose Standards
of Liability Should Track Constitutional
Principles, Not Those of Title VIT ............ 14
1. Section 1981 Was Enacted as an
Equal Protection Statute Intended to
Frforce Constitutional Rights .......... 18
2. Congressional Intent in the Enact-
ment of Section 1981 Was to Prohib-
li.
Page
it Unconstitutional, Purposeful Dis-
crimination, Not to Create Liability
Based on Disproportionate Impact ....
B. Extension of Griggs Doctrine to Section
1981 Is Inconsistent With Established
Standards of Liability in Non-employment
oF FF ee
C. The Federal Civil Rights Acts of 1866,
1870, 1871 and the Constitution Should
Be Harmonized by a Consistent Standard
for Determining Illegal Discrimination ....
Il
The Decision Is Contrary to the Supreme Court’s
Rulings in Washington v. Davis and Interna-
tional Brotherhood of Teamsters v. United
SUIT -ssienhtncestiiahiibitinintinincidccamnttanminadiaianbimennniiainiei
A. The Decision Unjustifiably Ignores the
Purposeful Intent Holding in Washington
v. Davis
B. The Decision Fails to Properly Distinguish
Between Pre- and Post-Title VII Hiring
Practices Contrary to _ International
Brotherhood of Teamsters v. United States
Ill
The Circuit Court’s Ruling Frustrates the Com-
prehensive Congressional Scheme Embodied in
SE NE aiicetncitaieyciniciaaianeoiestpsaigadionaseninasans
A. Jurisdiction Filing Prerequisites Evaded ..
23
25
30
31
31
35
39
40
Conclusion
iti.
Page
B. Liability Standards Extended to Employ-
ers Congress Desired Excluded
O
Remedies
D. Conciliation and Administrative Review
Procedures Frustrated
er
E. Uniformity of Enforcement Actions En-
IED: secsinunsetssesisaileslonneicsibsbaspriatstathae asta
F. The Decision Renders Title VII Retroac-
tive as to Public Agencies
IV
No Title VII Violation Proven
Vv
The Affirmed Quota Hiring Order Clearly Ex-
ceeds the Court’s Remedial Authority
41
42
43
. 44
46
48
iv.
TABLE OF AUTHORITIES CITED
Cases Page
Albemarle v. Moody, 422 U.S. 405 ....................-. 56
Alexander v. Gardner-Denver Co., 415 U.S. 36
SEED cniicssndsnnenctsetatinssniminsesennesesatieiddadionantiniipetis 41
Arnold v. Ballard, 390 F.Supp. 723 (N.D. Ohio
FTE <assctacecsvesaicctniacinentoontnttnedaciocsinmat 28, 29, 32
Bell v. Southwell, (Sth Cir. 1967) 376 F.2d 659 .. 27
Bridgeport Guardians v. Bridgeport Civil Service
Comm’'n., 482 F.2d 1333 (CA2 1973) ........ 28, 36
Castro v. Beecher, 459 F.2d 725 (CAI 1972) ..28, 36
Chance v. Board of Examiners, 458 F.2d 1167
GRIN. GIDE sci siicasicaricientnseansliniiesestieieamaimenediiilens 28, 36
Chicano Police Officer’s Association v. Stover, 552
of L Fi 4. 8 ) ae 32, 33
City of Milwaukee v. Saxbe, 546 F.2d 693 (7th
SERRE rerE TENE ETUDE Durer » om 32
Crocker v. Boeing Co., 437 F.Supp. 1138 (1977) .. 32
Crow v. Brown, 332 F.Supp. 382 (N.D. Ga. 1971)
aff'd 457 F.2d 788 (CAS 1972) ...................... 28
Davis v. County of Los Angeles, 566 F.2d 1334 ...... 33
Davis v. County of Los Angeles, 13 FEP Cases
IST. ”-adtiinndacidadiedepaseteidadieenadandunliciadmusianmanamebadannenain 5
Dayton Board of Education v. Brinkman, 433 U.S.
— 2 fF Bt.) ERs ler me 55
Dickerson v. U.S. Steel Corp., .... F.Supp. ...., 15
og B.A: | er ennenennemen 32, 44
Douglas v. Hampton, 168 U.S.App.D.C. 62, 512
I CUTIENED SisistcihroaccialtidlinlacdTihdalisibiasacesbediaiamadanalte 28
v.
Page
East Texas Freight v. Rodriguez, 431 U.S. 395
SE NINIITEN TC aiicacciieiiomeslasiiehtidiatiiatacilbadaticaditieniaiiedineiidh 7
EEOC y. Sherwood Medical Industries, .... F.Supp.
a fg se ET eco 43
Fowler v. Schwarzwalder, 351 F.Supp. 721 (D.
Minn. 1972), rev'd on other grounds, 498 F.2d
I cai aia arian 28
Franks v. Bowman Transportation Company, 424
ef eee 46, 47, 56
Friend v. Leidinger, (D.C., E.D. Va. 1977), 17
EPD 4 8392, 5978 ............ eendiciinaiiniea EI 51
Furnco Construction Corp. v. Waters, .... U.S. ....
SUNIL: \chbdihiadaadiennemnanaaincaaintamamiaieiielesind ices pedatis 57
Gautreaux v. Romney, 448 F.2d 731 (CA7 1971).. 28
Gilbert v. General Electric, 429 U.S. 125 (1976) .. 24
Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790
TIEN . iceedincantlanenschbccics acdesinsendheaiteunsiniooienstilabaabcniacts 22, 30
Harkless v. Sweeny Independent School District,
427 F.2d 319, 14 EPD © 7669, 5295 (Sth Cir.
1977)
Harper v. Kloster, 486 F.2d 1134 (CA4 1973) .... 28
Harper v. Mayor of Baltimore, 359 F.Supp. 1187
(D.Md. )
Hawkins v. Town of Shaw, 437 F.2d 1286 (CAS5
1971), aff'd on rehearing en banc, 461 F.2d 1171
PTET; iiiiditsdauienicieantnaabeehanbdissiiamiadinadicticnameabisinrs avila 28
Hazelwood Schoo! District v. United States. _. U.S.
sa 97 S.Ct. 2736 (1977) _20000000.........37, 46, 49, 51
Hills v. Gautreaux. (1976) 425 U.S. 284, 96 S.Ct.
1538
Vi.
Page
International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 97 S.Ct. 1843 (1977) ....
Ee ee eO eR Re RoE eer 31, 35, 37, 38, 46
Jackson v. Continental Oil Co., .... F.Supp. ....
CIDTS) onnecececconcseensessnssssneneccecosacnssnstencssososesonsoasees 45
Jennings v. Paterson, (Sth Cir. 1974) 488 F.2d
TE cess csciecncnndasniccsmpesennnunapatmunonienadsnstinapinenainaieisets 27
Johnson v. Alexander, 572 F.2d 1219, 16 FEP
et Le eB, . ) ae 32, 42
Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 95 S.Ct. 1716 (1975) ....14, 15, 40, 41, 44, 45
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88
ioe Fi | 15, 16, 20, 22, 25, 30
Kennedy Park Homes Assn. v. City of Lackawanna,
436 F.2d 108 (CA2 1970), cert. denied, 401
U.S. 1010, 91 S.Ct. 1256, 28 L.Ed.2d 546
CD cceccccncccenesicscensaseccneiiiinnciisensionnaininsidiniaiaansaves 28
Lewis v. Bethlehem Steel Corp., 440 F.Supp. 949
IID xcccenasnsisncsccsicnecinniiisennsesnnioninnndnmminnnaiinniiitiva 32, 33
McDonnell Douglas Corp. v. Green, 411 U.S. 792
SIIRDD -ipcatishtcotinneviceisisiontieinahanteampiianmmninamnseee 41
McDonnell v. Santa Fe Trail Transportation Co.,
427 U.S. 327, 96 S.Ct. 2574 (1976) ................ 19
Metropolitan H. D. Corp. v. Village of Arlington
Heights, 517 F.2d 409 (CA7), cert. granted,
Dec. 15, 1975, 423 U.S. 1030, 96 S.Ct. 560, 46
SE I © PI .ceceiconsesinsintasiintientoiasniecinciateintnitemtaliin 28
Milliken v. Bradley, 418 U.S. 711 —........0002.0...... 54, 55
Norwalk CORE v. Norwalk Redevelopment Agen-
ee FY 8 RS Be ) eee 28
Vii.
Page
Occidental Life Insurance Co. v. EEOC, 432 U:S.
Rg er eee arene 43, 45, 46
Olzman v. Lake Hills Swim Club, Inc., (2nd Cir.
Sr 27
Pattersor v. American Tobacco Co., 535 F.2d 257
| ER re ee 37, 47
Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974)
Regents of the University of California v. Bakke,
.... U.S. ..... 17 FEP Cases 1000 (1978) ..54, 56, 57
Robinson v. Lorillard, 444 F.2d 791 (4th Cir.
| FE eee ee RPA Lee te ate e, od Se 37, 47
Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586
PTI shige thie taba lee aad 19, 20, 26
Sabala v. Western Gillette, Inc., 516 F.2d 125]
RR FIRES ERI Te eM ERS 5 EE 40
Sabo! v. Snyder, 524 F.2d 1009 (10th Cir. 1975) . 40
Scott v. City of Anniston, (N.D. Ala. 1977), 430
F.Supp. 507
Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975) _.. 50
Southern Alameda Spanish Speaking Organization
v. Union City, 424 F.2d 291 (CA9 1970)
Tillman v. Wheaton-Haven Recreation Assn., 410
U.S. 431, 93 S.Ct. 1090 (1973)
Tyler v. Vickery, 517 F.2d 1089 (CAS 1975) _.. 28
United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct.
1885 (1977)
Viil.
Page
United States v. City of Chicago, 385 F.Supp. 543
(N.D. Ill. 1974) ...........:cceeccceeceseeeeeseseseesensnseneneens 28
United States v. City of Chicago, 549 F.2d 415
(Tithe Cir, 1977) ......0-2-ccccceecoreorcerecccsenecesessssesbes 32
United States v. State of So. Carolina, .... F.Supp.
....» 15 FEP Cases 1196 (1977) ............--:----eeeeee- 32
Van Davis, et al. v. County of Los Angeles, et
al., 566 F.2d 1334 (9th Cir. 1977) ........ SS
Velzaga v. National Board of Respiratory Therapy,
13 EPC @ 11, 525, 8875, 8881 (N.D. Ill, Jan-
BOTY ZT, 1977) -.22.-200---22nnccrreccrceccconscerenensoenoseossces 32
Wade v. Mississippi Cooperative Extension Serv.,
372 F.Supp. 126 (N.D. Miss. 1974) .-............--.- 28
Washington v. Davis, 426 U.S. 229 (1976) ..7, 11, 19
aaa 20, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 57
Miscellaneous
House Report No. 92-238 (1971), p. 19 -............... 51
1972 Senate Congressional Record, p. 3372 ............ 17
Senate Report No. 92-415 (1971), pp. 10-11 ........ 51
United States Congressional and Administrative
I EERE Oh CUTE? Sekticincnesiimtieniiantansigninigninns 44
United States Congressional and Administrative
I REET 1k UEIITD sniecessinemnnttsiintssinntnasanaiomiiiins 16, 50
United States Congressional & Administrative
INES TI MII sersansiceccrientevntnpenstninneisonenentone 46
Regulations
Code of Federal Regulations, Title 5, Sec. 300.101
~ nee”
ix.
Rules Page
Rules of Court, Rule 19(1)(b) -.....0. 0. 2
Statutes
Civil Rights Act of 1866, Sec. 1
Civil Rights Act of 1964, Title VII, Sec. 701(b) .... 42
Civil Rights Act of 1964, Title VII, Sec. 701(b) (2)
Civil Rights Act of 1964, Title VII, Sec. 706(b) .... 39
Civil Rights Act of 1964, Title VII, Sec. 706(c)
Civil Rights Act of 1964, Title VII, Sec. 706(d) .... 39
Civil Rights Act of 1964, Title VII, Sec. 706(e) ....
EE re A AO RE oO ES 39, 40
Civil Rights Act of 1964, Title VII, Sec. 706(f)(1)
seesslainemeaepsiaadidibedeliapataitacssceiiiatabisladbibeanaiinisdigeniendsoniigsaneemnsvenmies 39
Civil Rights Act of 1964, Title VII, Sec. 709 .......... 39
Public Law 94-559, 90 Stat. 2641 0000000... 40
United States Code, Title 5, Sec. 3304 00.00... 34
United States Code, Title 28, Sec. 1254(1) 00.0.0... 2
EES OE ee ae eI er 2, 11, 18, 19, 30, 35, 38, 50
United States Code, Title 28, Sec. 1343 .......000000.. 2
United States Code, Title 42, Sec. 1981 .............
PR OR Be Be Do Fe ae OG-41, 12.. 04 M 99.. 26, 19
ee ae 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 32, 34
ues 35, 36, 38, 29, 40, 41, 42, 44, 45, 46, 47, 48
Re a a SR DR A dR Cae 49, 50, 51, 53, 54, 57, 58
Page
United States Code, Title 42, Sec. 1983 ....5, 11,16, 18
vokstunlaiaaamaaa 19, 20, 25, 28, 30, 32, 33, 34, 36, 50, 57
United States Code, Title 42, Sec. 1985 ................ 11
United States Code, Title 42, Sec. 1985(3) -~........
coneucececsucesesenmautienmennnsesnneiniaininan 20, 22, 30, 57
United States Code, Title 42, Sec. 1988 ................ . 40
United States Code, Title 42, Sec. 20008 ................ 2
United States Code, Title 42, Sec. 2000e(b) .......... 41
United States Code, Title 42, Sec. 2000e(c) .......... 41
United States Code, Title 42, Sec. 2000e-5(e) ...... 40
United States Code, Title 42, Sec. 2000e-5(f)(1) .. 40
United States Code, Title 42, Sec. 2000e-16 ............ 5
United States Constitution, Fifth Amendment .......... 2
United States Constitution, Thirteenth Amendment
mecemceesseesssssensesietianlbessumiesaninainsa 18, 19, 22, 30
United States Constitution, Fourteenth Amendment
Textbooks
Fiss, A Theory of Fair Employment Laws, 38 Uni-
versity of Chicago Law Review, pp. 235, 327,
iy ; a 24
Law, P. 639 .............ccccc-sccccrserereeesenncsnnnesssssnnsossnes 40
Seelman, Employment Testing Law; 10 Urban Law-
yer, pp. 1, 49, 59, m. 206 ..........-.ereceeeesnecersennens 23
ee pee -- —ee
IN THE
Supreme Court of the United States
October Term, 1978
No. 77-1553
COUNTY OF LOS ANGELES; BOARD OF SUPERVI
OF THE COUNTY OF LOS ANGELES; and CIVIL SERV.
ICE COMMISSION OF THE COUNTY OF LOS ANGELES,
Petitioners,
vs.
VAN DAVIS, HERSHEL CLADY and FRED VEGA, indi
ally and on behalf of all others similarly situated, WILLIE C.
BURSEY, ELIJAH HARRIS, JAMES W. SMITH, WILLIAM
CLADY, STEPHEN HAYNES, JIMMIE ROY TUCKER,
LEON AUBRY, RONALD CRAWFORD, JAMES HEARD,
ALFRED R. BALTAZAR, OSBALDO A. AMPARAH, in-
dividually and on behalf of all others similarly situated,
Respondents.
On Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit.
BRIEF FOR COUNTY OF LOS ANGELES, et al.,
PETITIONERS.
Opinion and Judgment Below.
The opinion on rehearing (including dissent) of
the United States Circuit Court of Appeals for the
Ninth Circuit is reported as Van Davis, et al. v. County
of Los Angeles, et al., 566 F.2d 1334 (9th Cir. 1977).
The original opinion of the circuit court is printed
as Appendix F and reported as 13 FEP Cases 1217
(1976).
—_
Jurisdiction.
The opinion and judgment were entered on December
14, 1977. A timely petition for rehearing was filed
by the respondents, Van Davis, et al. (plaintiffs-appel-
lants below), and was denied on January 30, 1978.
Jurisdiction of the district court was based on 28
U.S.C. Sec. 1343.
This Court’s jurisdiction is invoked under 28 U.S.C.
Sec. 1254(1), and Rule 19(1)(b), and the Petition
for Writ of Certiorari was granted on June 19, 1978.
Constitutional and Statutory Provisions Involved.
1. The Sth and 14th Amendments to the United
States Constitution; in particular, the due process and
equal protection clauses thereof;
2. The following provisions of the United States
Code:
42 U.S.C. Sec. 1981. Equal rights under the law:
All persons within the jurisdiction of the United
states shall have the same right in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings
for the security of persons and property as is
enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses,
and extractions of every kind, and to no other.
42 U.S.C. Sec. 2000e, et seq. Title VII of the
Civil Rights Act of 1964 as amended in 1972.
Questions Presented.
1. Is proof of purposeful racial discriminatory intent
required to establish a cause of action for employment
MELTS TT
aufjes
discrimination under 42 U.S.C. Sec. 1981 or can an
employer be held liable for pre-Title VII employment
practices under Sec. 1981 merely by a showing of
disproportionate impact?
2. Is the imposition of a racial quota hiring order
effective until the entire fire department achieves cur-
rent racial parity with the general Los Angeles County
population beyond the jurisdiction of the court when:
a. The district court expressly found no discrimina-
tory intent was present;
b. The quota hiring order attempts to remedy hiring
practices occurring prior to the effective date of Title
VII and time barred by the applicable 3-year Statute
of Limitations on Sec. 1981 actions;
c. The respondents had no standing to represent
any pre-March 24, 1°/2 applicants and no discrimina-
tory hiring has occurred subsequent to Title VII's effec-
tive date;
d. The quota remedy exceeds the scope of the
effects of any proven discriminatory hiring practices?
Statement of the Case.
In this proceeding, the County of Los Angeles by
judgment entered on July 20, 1973 was found liable
for employment discrimination under 42 U.S.C. Sec.
1981 and Title VII and ordered to engage in quota
hiring of blacks and Mexican-Americans until the entire
fire department numbering 1750 firefighters achieved
racial parity with the County’s general population. The
following pivotal facts were established at trial:
1. It was conceded by respondents that no dis-
criminatory hiring occurred after the effective date
of Title VII (A. 5, 6).
—
2. The trial court found that the County had not,
at any time, engaged in purposeful discrimination. To
the contrary, the court expressly found that the County
had engaged in efforts designed to increase minority
representation in the fire departnent (A. 41).
3. None of the respondents except those already
employed by the department had been applicants for
any firefighter position prior to 1972. None of the
named plaintiffs had been disqualified or adversely af-
fected in the selection process by any of petitioners’ writ-
ten tests. The Ninth Circuit subsequently held that the
plaintiffs lacked standing to challenge the County’s
use of qualification tests given at any time prior to
1972 (A. 83).
4. All respondent applicants taking the 1972 writ-
ten exam passed, and all hiring from the resulting
eligibility list was conceded by plaintiffs prior to trial
to have been accomplished in a non-discriminatory
manner.
The respondents in their complaint filed on January
11, 1973 challenged two written employment tests of
the County of Los Angeles—one given in 1969 and
the other in 1972. Only these two written employment
tests administered by the County of Los Angeles are
relevant or were in issue in this case. Both tests were
civil service aptitude tests developed by Los Angeles
County’s Department of Personnel and administered
to all applicants for entry level firemen during the
two periods when applications for employment were
being accepted.’ While also claiming the 5’7” minimum
‘The appointment procedure also included a competitive oral
interview, medical exam, physical strength and agility test and
background check. None of these tests had a disproportionate
impact on minorities and were not challenged as being dis-
criminatory by the respondents.
© ane rere
—
GR STs a eT ee
anfinn
height standard was discriminatory, the plaintiffs (re-
spondents herein) expressly declined to seek an injunc-
tion against its use in both the District and Circuit
Court. None of the plaintiffs was disqualified by the
minimum height standard. In an amended complaint
the plaintiffs conceded that the hiring as a result of
the 1972 test was not discriminatory (A. 5, 6). Ulti-
mately, the Ninth Circuit in the decision under review
ruled that the plaintiffs had no standing to challenge
the 1969 written tests.
Legal Proceedings.
In July, 1973, the trial court found that petitioner
County of Los Angeles had violated 42 U.S.C. Secs.
1981, 1983, and Sec. 2000e-16 (Title VII) by adminis-
tering a written employment qualification test for entry-
level firefighter in 1969, and January, 1972, which
had “a disproportionate impact on blacks and Mexican-
Americans and not shown by a validation study to
be predictive of job performance statistically” (A. 39).?
The district court upheld the department’s 5’7” mini-
mum height standard. The court further found that
neither the defendants nor their officials had engaged
in any employment practices with a wilful or conscious
purpose of excluding blacks and Mexican-Americans
2The only employment practices found by the district court
to be discriminatory were, 1) the use of the two written
tests having a disproportionate impact on blacks and Mexican-
Americans and not shown by a validation study to be predictive
of job performance statistically, and 2) the failure to cure
a bad reputation in the minority community. The latter ground
the circuit court did not consider sufficient to constitute a
valid Title VII claim because it was extremely impressionistic
and the district court did not rely on that theory. The only
practices held by the circuit court as being discriminatory were
the 1972 written test and the height requirement.
Davis v. County of Los Angeles, 13 FEP Cases 1217
at 1219 n.6.
— =
from employment, but to the contrary, had engaged
in efforts designed to increase minority representation
in the Fire Department (A. 41). The district court
also found that the petitioners did not interfere with
affirmative action efforts of individual persons designed
to increase black and Mexican-American participation
rates in the Fire Department (A. 39).
As a remedy, the court ordered that thc County
hire all future entry level firemen in accordance with
a hiring quota of 20% black and 20% Mexican-
American until such time as the percentage representa-
tion of those minorities in the entire Fire Department
in all ranks equaled their representation in the County’s
general population.
The only named plaintiffs in this case were individ-
uals who were already employed as firefighters or
who had ‘«pplied for and taken only the 1972 written
examination and were subsequently certified on a hiring
list conceded by plaintiffs to have been administered
and utilized in a non-discriminatory manner. No indi-
vidual who had been unsuccessful on the 1969, or
any prior exam, was a plaintiff, nor did the plaintiffs
seek to represent such prior applicants, the complaint
alleging that it was filed only on behalf of “blacks
Or Mexican-Americans” who are current or future appli-
cants for employment as Los Angeles County Firemen
(A. 3).
On appeal, the United States Court of Appeals for
the Ninth Circuit, in its original decision, affirmed
the judgment finding the County in violation of Sec.
1981. The court found that the plaintiffs failed to
prove that specific discriminatory acts occurred during
the effective period covered by Title VII because the
tests administered in 1972 had not been implemented;
ang, — —_
—
that is, no civil service list was promulgated or hires
made as a consequence of the test results (A. 56,
57). Nevertheless, the court ruled that Title VII stand-
ards were applicable to Sec. 1981 claims and that
a violation of Sec. 1981 could be established merely
by showing that a hiring practice had a disparate
effect on minorities and the employer was unable to
validate the test as job-related. The circuit court re-
versed the trial court’s judgment upholding petitioners’
5’7” minimum height standard and remanded for recon-
sideration of the quota.
Subsequent to its original decision, the Ninth Circuit,
upon petitioners’ request, granted a rehearing to deter-
mine, in light of this Court’s recent decision in Washing-
ton v. Davis, 426 U.S. 229 (1976), whether proof
of purposeful discriminatory intent is required for a
violation of Sec. 1981. On rehearing, the Ninth Cir-
cuit (Judge Wallace dissenting) affirmed its original
finding that there was no operational distinction be-
tween liability based upon Title VII and Sec. 1981
and that the adverse impact standards evolving from
Title VII cases were sufficient to establish liability
under Sec. 1981. It was held that a showing of delib-
erate intent to discriminate was not a requirement
under Sec. 1981 as it was under the United States
Constitution, as determined by this Court in Washing-
ton v. Davis (A. 89, 90).*° The Ninth Circuit, however,
8The majority opinion expressed their ruling in these terms:
“In our view, there remains no operational distinction in this
context between liability based upon Title VII and Sec. 1981.
“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 Sec. 1981. Plaintiffs produced
overwhelming statistical data to establish the test's dispropor-
tionate impact upon minority applicants, and the defendants
were unable to validate the test in terms of job-relatedness”
(A. 90, 91).
_
did rule that respondents lacked standing to represent
prior unsuccessful applicants including those taking the
1969 test because the class did not include any prior
unsuccessful applicants. Van Davis, et al. v. County
of Los Angeles, et al., 566 F.2d 1334 at 1338 (A.
83).
Judge Wallace dissented, being of the opinion that
constitutional standards were applicable to proving dis-
crimination under Sec. 1981 and noting that, even
if it were otherwise, the quota hiring order was excessive
as well as improper in view of the court’s finding
that respondents lacked standing to represent former
applicants.
Hiring Practices.
The written civil service test challenged in this litiga-
tion was administered to applicants for entry-level fire-
fighter positions twice, once in 1969 and again in
January, 1972. The oral interview and physical agility
portions of the examination process were not attacked
because they had no disproportionate impact on minori-
ties. Implementation of the 1972 administered test was
delayed pending litigation in the state courts and when
finally utilized for hiring purposes in 1973, was used
only on a pass-fail basis with 97% of all applicants
passing. As to these passing applicants, their subsequent
oral interviews and physical examinations had no ad-
verse impact.
The County of Los Angeles hired no firemen from
well before March 24, 1972 (the effective date of
Title VII) until the Spring of 1973, when the first
recruit class was composed 50% of minorities (10
aaljum
blacks and 20 Mexican-Americans.)* All subsequent
hiring has been pursuant to the trial court’s 40%
preferential minority hiring order of July, 1973. At
no time was there any claim made that there had
been discriminatory hiring since March 24, 1972, or
as a consequence of the 1972 written test.
It was established at trial in June, 1973 that the
1969 written exam as utilized in the hiring of new
firefighters had a disproportionate impact on blacks
and Mexican-Americans. The County, however, in the
administration of the subsequent 1972 exam, set the
cut off score extremely low so that 97% of the appli-
cants passed, and then intended to process through
the oral interview and physical agility phases of the
selection process approximately 500 of those applicants.
These 500 would be chosen totally by random selection
so that the minority applicant percentage which approxi-
mated their community representation would be main-
tained throughout the subsequent stages of the selection
process which had shown no history of disproportionate
racial impact (A. 23, 24).
A state lawsuit alleging that the proposed random
selection method violated the civil service law resulted
in its use being enjoined. After a year’s delay, the
County, because of the urgent need for new firemen,
initially contemplated interviewing the top 544 appli-
cants on the 1972 written test. No such selection
or interviews were ever commenced. Instead, all passing
applicants were interviewed and hires were made in
a non-discriminatory manner (A. 5, 6, 25).
‘The respondents, in their first and second amended com-
plaints, alleged that the hiring of this recruit class was done
in a non-discriminatory manner (A. 5, 6).
=
During the five-year pendency of the appeal, the
petitioners observed, and in most cases exceeded the
terms of the quota hiring order, and as of July, 1978,
had hired as firemen recruits 373 persons of which
207 (55.5% ) were blacks or Mexican-Americans. Pur-
suant to the terms of the judgment the district court
receives annual reports and retains jurisdiction over
the case until the entire department reaches community
racial parity.
Summary of Argument.
The judgment herein holding the petitioner liable
for pre-Title VII (March 24, 1972) employment prac-
tices is challenged on two primary grounds:
1) Purposeful discriminatory intent is required to
establish a violation of 42 U.S.C. Sec. 1981. This
the respondents failed to do as the trial court expressly
found no intentional discrimination in regard to any
of petitioners’ employment practices.
2) The quota hiring order was beyond the District
Court’s jurisdiction as it clearly exceeds the scope of
the violations and illegally strives to achieve racial
balance rather than remedy the effects of proven dis-
crimination occurring within the actionable 3-year Stat-
ute of Limitations period. Moreover, the respondents
(none of whom had been discriminatorily denied em-
ployment) lacked standing to represent prior applicants
who were objects of the remedial order.
The petitioners made no hires in a discriminatory
manner or with any disproportionate effect subsequent
to the effective date of Title VII, nor in any way
engaged in a pattern or practice of discrimination.
—
42 U.S.C. Sec. 1981, enacted originally as part of
the Civil Rights Act of 1866 and reenacted as part
of the Civil Rights Act of 1870, is a statute separate
and distinct from Title VII and is neither co-extensive
in coverage or in the standards for measuring an action-
able claim. Section 1981 is an equal protection statute
similar to Sec. 1983, enacted to protect constitutional
rights in accordance with the congressional intent to
prohibit deliberate discrimination. The more stringent
presumptions, standards, and burdens of proof unique
to Title VII are not applicable to claims under Sec.
1981 as the Supreme Court has held them not to be
applicable to the Fourteenth Amendment and Sec. 1983
in Washington v. Davis, 426 U.S. 229 (1976).
A decision that constitutional standards (purposeful
intent) govern the proof of a cause of action under
Sec. 1981 will comport with its legislative history,
its application in related discrimination cases, and will
harmonize that statute with parallel interpretations of
Secs. 1982, 1983, 1985, and the U.S. Constitution.
Moreover, such an interpretation is necessary to avoid
the harm attendant to Title VII enforcement procedures
if Sec. 1981 discrimination standards are held to be
operationally the same as Title VII's.
Extending Title VII standards to Sec. 1981 causes
of action will necessarily create conceptual confusion
in all forms of non-employment discrimination actions
under Sec. 1981. To a great extent the effect of the
Court’s ruling in Washington v. Davis will be negated
by the simple expedient of alleging a cause of action
under Sec. 1981. Moreover, the circuit court’s decision
will permit circumvention of the Title VII’s administra-
tive, conciliatory, and procedural prerequisites. The
enfitine
latter consequence, because of differing statutes of limi-
tation among the jurisdictions, would destroy the en-
forcement uniformity of Title VII and expose the federal
courts to a flood of litigation on claims that Congress
intended should be first winnowed through the EEOC
conciliation machinery. The circuit court’s decision ef-
fectively vitiates the clear distinction this Court has
made between proof and liability for pre- and post-
Title VII employment practices and makes Title VII
retroactive to government agencies.
Although liability and the quota hiring order have
been predicated upon a violation of Sec. 1981, it
is likewise clear that there has been no violation of
Title VII. All hires by the petitioners subsequent to
the effective date of Title VII have been non-discrimina-
tory, without disproportionate effect, and in compliance
with the Court’s quota hiring order. Under the facts
of the case, there is absolutely no basis for a finding
of Title VII violation and certainly there is no factual
justification for the wide-ranging quota hiring order
imposed.
Although the focus of the argument has been directed
to the Sec. 1981 issue, the nature of the remedy imposed
has far-reaching consequences and is subject to serious
challenge. The trial court’s hiring order requiring 40%
minority hiring per annum until the entire fire depart-
ment achieves racial parity with the general county
population is in excess of the court’s jurisdiction and
violates Sec. 703(j) of Title VII. The respondents
have concurred that the remedial hiring order herein
was based upon a pattern and practice of discriminatory
practices that were unlawful only under Sec. 1981,
not Title VII (Opposition 29). As such, of course,
—
the quota order is totally unrelated to the extent of
any proven violation, seeks to provide a remedy to
a class the court of appeals has held the respondents
have no standing to represent, and attempts to remedy
speculative unproven discrimination that could have
only taken place, if at all, more than three years
preceding the filing of the action and thus time barred
under the applicable statute of limitations.
culties
ARGUMENT.
I
CONSTITUTIONAL, NOT TITLE VII, STANDARDS OF
DISCRIMINATION GOVERN CLAIMS UNDER 42
U.S.C. SEC. 1981; PURPOSEFUL DISCRIMINATION
THE CORRECT CRITERION FOR ADJUDGING A
VIOLATION OF SEC. 1981.
A. Section 1981 Is a Separate and Distinct Equal
Protection Statute Whose Standards of Liability
Should Track Constitutional Principles, Not Those
of Title VII.
The circuit court’s holding that there remains no
operational distinction between liability based upon
Title VII and Sec. 1981 ignores Sec. 1981’s constitu-
tional heritage and embarks the federal courts on a
journey that is completely divergent from the historical
foundations of the Civil Rights Acts of 1866 and
1870.
One begins with the observation that Sec. 1981
and Title VII are separate, distinct and independent
statutes affording different, albeit to some extent re-
lated, rights and remedies. The independent nature
of the two statutes, enacted more than ninety years
apart, was firmly established by the Court in Johnson
v. Railway Express Agency, Inc., 421 U.S. 454 (1975).
In Johnson, the Court had occasion to decide whether
the filing of an EEOC charge pursuant to Title VII
tolled the statute of limitations applicable to an action
on the same facts under Sec. 1981. The Court, in
concluding that it did not and that the plaintiff was
barred from pursuing his claim under Sec. 1981 stated
that,
—15—
“Sec. 1981 is not coextensive in its coverage with
Title VII”,
and commented further,
7 . that the remedies available under Title
VII and Sec. 1981, although related and although
directed to most of the same ends, are separate,
distinct, and independent . . .”
Johnson v. Railway Express Agency, Inc., supra
at 460, 461.
In an earlier case, Jones v. Alfred H. Mayer Co.,
392 U.S. 409, 88 S.Ct. 2186 (1968), the Supreme
Court noted the independent nature of the Reconstruc-
tion Era Civil Rights Statutes and the recently enacted
Civil Rights Act of 1968. Title VIII of the Civil
Rights Act of 1968, similar to Title VII of the Civil
Rights Act of 1964, prohibited discrimination in a
defined area of congressional concern and provided
comprehensive administrative machinery for the enforce-
ment of open and non-discriminatory housing. The
Su_ceme Court found that statute to be quite different
from its 100-year-old predecessor in 42 U.S.C. Sec.
1982 stating,
“Later the same day, the House passed the Civil
Rights Act of 1968. Its enactment had no effect
upon Sec. 1982 and no effect upon this litigation,
but it underscored the vast differences between,
on the one hand, a general statute applicable
only to racial discrimination in the rental and
sale of property and enforceable only by private
parties acting on their own initiative, and, on
the other hand, a detailed housing law, applicable
to a broad range of discriminatory practices and
_—Y
enforceable by a complete arsenal of federal au-
thority.”
Jones v. Alfred H. Mayer Co., supra at 2191.
Although Jones involved Sec. 1982, 4 companion
to Sec. 1981 in the Civil Rights Act of 1870, the
Court’s analysis of that statute in the context of the
recently enacted Title VIII of the Civil Rights Act of
1968 is extremely illuminating. In addition to recog-
nizing the independent nature of the two statutes, the
Court found that the passage of the modern law had
no effect upon Sec. 1982—a view similar to the one
urged by the petitioners herein—that Title VII of the
1964 Civil Rights Act was not intended to, and, in
fact, did not have any effect on Sec. 1981.
Evidence in the Congressional Record could not
make it more clear that Congress in enacting Title
VII in 1964 and amending it in 1972, intended Title
VII to provide an additional, independent cause of
action and in no way to affect Secs. 1981, 1983:
“In establishing the applicability of Title Vil to
state and local employees, the Committee wishes
to emphasize that the individual’s right to file
a civil action in his own behalf, pursuant to the
Civil Rights Act of 1870 and 1871, 42 US.C.
Secs. 1981 and 1983, is in no way affected” ....
“Title VII was envisioned as an independent statu-
tory authority meant to provide an aggrieved indi-
vidual with an additional remedy to redress em-
ployment discrimination . . . .”
U.S. Cong. & Adm. News °72, p. 2154.
In debating whether to repeal Sec. 1981 and to
make Title VII the exclusive discrimination remedy
“ ————
= =
in 1972, it was stated by Senator Williams in support
of retaining Sec. 1981 that:
“This is especially true where the legal issues
under other laws may not fall within the scope
of Title VII or where the employee, employer,
or labor organization does not fall within the
jurisdictional confines of Title VII. These situa-
tions do exist, and I am sure that it is unnecessary
to spell them out at this point.”
1972 Senate Congressional Record, p. 3372.
While both the Supreme Court and Congress have
observed that Sec. 1981 and Title VII are separate
and distinct statutes providing independent avenues for
relief, it has been remarked that the remedies are,
to a certain extent, coextensive and that the two statutes
augment each other and are not mutually exclusive.
This is correct, of course, to the same extent as can
be said about any number of laws that deal in general
with the same subject matter. This does not mean
that the same standard of liability pertains to each
Statute and that purposeful intent is not a necessary
element to a Sec. 1981 claim.
The remedies available under Sec. 1981 and Title
VII are very similar and both statutes provide a cause
of action for discrimination in employment, including
that of a deliberate character. This overlap of remedies
and jurisdiction in the instance of deliberate discrimina-
tion cannot be taken as a basis for concluding that
the proof of discrimination is the same in all cases
under the two independent statutes and that Sec. 1981
prohibits unintentional discrimination upon proof that
a neutral hiring practice had a disproportionate impact.
Since Title VII and Sec. 1981 are clearly independent
statutes, and the petitioners’ liability was predicated
— =
on the latter, the inquiry must focus on what is the
standard of liability under Sec. 1981 as intended by
Congress in the post-Civil War period.
1. Section 1981 Was Enacted as an Equal Protection Statute
Intended to Enforce Constitutional Rights.
Section 1981 is a post-Civil War Reconstruction
Era statute originally enacted in 1866 to enfogce the
13th Amendment to the United States Constitution
which prohibits involuntary servitude, and extends to
others the same right to make and enforce contracts
enjoyed by white citizens—that is, equal rights under
the laws. Section 1981 was subsequently reenacted as
part of the Civil Rights Act of 1870, which was
designed to implement the 14th Amendment. Clearly,
Sec. 1981, enacted as part of the Civil Rights Act
of 1866, rested only on the 13th Amendment as the
14th Amendment had not been formally proposed at
the time. The Civil Rights Act of 1870, however,
is based upon the 14th Amendment and it reenacted,
with minor changes, certain language of Sec. 1981,
as it appeared in the 1866 Act.
In determining whether Sec. 1981 is based solely
on the 13th or 14th Amendment, the problem is com-
pounded by the reenactment of Secs. 1981 and 1983
together in the recodification in 1874. The most recent
Supreme Court view appears to be that Sec. 1981
finds its roots in both the 13th and 14th Amendments.
While the true constitutional antecedents of Secs.
1981 and 1983 may make for an interesting excursion
into the realm of legislative genealogy, its resolution
is not determinative of the predominant issue of this
case; i.e., whether Title VII or constitutional standards
of liability pertain. It is clear that Sec. 1981-is based
ee a te ee
a @. Bence lee @ rte,
ieee O10 essa Bin) oat sme 6 elo
==
upon a constitutional right which the Court has found
is traceable, in substantial part, to the 14th Amendment.
Even assuming Sec. 1981 to be predicated solely on
the 13th Amendment, the standard of liability is still
purposeful racial discrimination.
The broader equal protection principles applicable
to all races from Sec. 1981 has been recently empha-
sized ®y this Court despite its partial heritage from
the 13th Amendment. McDonnell v. Santa Fe Trail
Transportation Co., 427 U.S. 327, 96 S.Ct. 2574
(1976); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct.
2586 (1976). In this context, an argument that consti-
tutional distinctions in the origins of Secs. 1983 and
1981, in and of themselves, require rejection of the
Washington v. Davis rule when applied to local govern-
ment action challenged under Sec. 1981, lacks persua-
sion. Standards for actionable discrimination under the
two statutes should be harmonized, rather than distin-
guished, a concept noted by this Court in Runyon
v. kdcCrary, supra. Section 1981 prohibits racial distinc-
tions in the terms of, or in the right to make, a contract.
It does not incorporate the subtleties and rigorous stand-
ards relating to adverse impact and test validation
that have evolved with the passage of Title VII and
its subsequent interpretation by the courts and adminis-
trative agencies. If the employer deliberately discrimi-
nates in making an employment contract based on
race, or specifies different terms and conditions thereof
based solely on race, then those statutes as well as
the United States Constitution have been violated.
“One of the ‘rights enumerated’ in Sec. 1 is
‘the same right . . . to make and enforce contracts
. . aS is enjoyed by white citizens ... .” 14 Stat.
27. Just as in Jones a Negro’s Sec. 1 right to
=_ =
purchase property on equal terms with whites was
violated when a private person refused to sell to
the prospective purchaser solely because he was
a Negro, so also a Negro’s Sec. | right to ‘make
and enforce contracts’ is violated if a private offer-
er refuses to extend a Negro, solely because he
is a Negro, the same opportunity to enter into
contracts as he extends to white offerees.”
Runyon v. McCrary, supra at 2594.
This exclusion based on race alone is clearly not
what occurred in the instant case or in Washington
v. Davis. In both instances, the same civil service
developed test was administered to all races and the
same grading and scoring standards for determination
of eligibility for appointment were applied equally and
consistently to all races. The respondents have predi-
cated their entire case solely upon a showing of dispro-
portionate impact and a claim that the defendants can-
not prove by a validation study that their tests are re-
lated to, or predictive of, job performance statistically—
evidentiary principles that have evolved solely from
Title VII decisions.
The Supreme Court has previously held that discrimi-
natory intent is required under 42 U.S.C. Secs. 1982,
1983 and 1985(3). Section 1981 should be construed
accordingly. In Tillman v. Wheaton-Haven Recreation
Assn., 410 U.S. 431, 93 S.Ct. 1090 (1973), supra,
the Court stated that Secs. 1981 and 1982 should
be construed together in light of their historical relation-
ship. Noting the independence of Title VIII from Sec.
1982, the Court in Jones v. Alfred Mayer Co., went
on to interpret Sec. 1982, itself, to determine if it
prohibited private as well as public discrimination. The
cnifiion
present language of Sec. 1982 is remarkably similar
in its broad scope to that of Sec. 1981 since both
find their genesis in Sec. 1 of the 1866 Civil Rights
Act. As the Court described the statute in Jones, supra
at 2193,
Ld
. . . fi]n plain and unambiguous terms Sec.
1982 grants to all citizens, without regard to race
or color, the same right to purchase or lease
property as is enjoyed by white citizens.”
The present language of Sec. 1981 was originally part
of Sec. 1 of the 1866 Civil Rights Act which provided:
“. . . citizens, of every race and color, without
regard to any previous condition of slavery or
involuntary servitude, * * * shall have the same
right, in every State and Territory in the United
States, to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase,
lease, sell, hold, and convey real and personal
property, and to full and equal benefit of all
laws and proceedings for the security of person
and property, as is enjoyed by white citizens,
and shall be subject to like punishment, pains,
and penalties, and to none other, any law, statute,
ordinance, regulation, or custom, to the contrary
notwithstanding.” (Emphasis added).
In later codifications, the language pertaining to the
right to make and enforce contracts was retained
in Sec. 1981, and the language relating to the right
to purchase, lease and convey real or personal property
was transposed to a new section enumerated as Sec.
1982. In interpreting what the present language of
Sec. 1982 was intended to prohibit, the Court stated:
“Hence the structure of the 1866 Act, as well
as its language, points to the conclusion urged
niin
by the petitioners in this case—that Sec. 1 was
meant to prohibit all racially motivated depriva-
tions of the rights enumerated in the statute. . . .”
(Emphasis added ).
Jones v. Alfred H. Mayer Co., supra at 21%6.
Two statutes enacted at the same time, sharing the
same congressional goals and the same Civil Rights
Act, and utilizing essentially the same language, particu-
larly the operative phrases under which certain forms
of discrimination are actionable; to wit, “to make and
enforce contracts,” and “to . . . purchase, lease, sell
. and convey real and personal property” must
be considered in pari materia and construed according-
ly. The parity of construction between Secs. 1981 and
1982 is further supported by the Supreme Court’s find-
ing in Tillman v. Wheaton-Haven Recreation Assn.,
410 U.S. 431, 93 S.Ct. 1090 (a case involving an
express racial exclusionary policy), that:
“In light of the historical interrelationship between
Sec. 1981 and Sec. 1982, there is no reason to
construe these sections differently when applied
on these facts to the claim of Wheaton-Haven
that it is a private club.”
Tillman v. Wheaton-Haven Recreation Assn.,
supra at 172.
Additional support for the conclusion that Sec. 1981
is an equal protection constitutionally based statute
requiring proof of discriminatory intent is provided by
this Court’s decision interpreting Sec. 1985(3), enacted
as part of the 1871 Act, in Griffin v. Breckenridge,
403 U.S. 88, 91 S.Ct. 1790 (1971). In Griffin, the
Court held that Sec. 1985(3) was premised on the
13th Amendment and that a required element of a
online
cause of action under that statute was invidious discrim-
inatory intent:
“The constitutional shoals that would be in the
path of interpreting Sec. 1985(3) as a general
federal tort law can be avoided by giving full
effect to the congressional purpose—by requiring,
as an element of the cause of action, the kind
of invidiously discriminatory motivation stressed
by the sponsors of the limiting amendment. See
the remarks of Representatives Willard and Shella-
barger, quoted supra, at 1797. The language re-
quiring intent to deprive of equal protection, or
equal privileges and immunities, means that there
must be some racial, or perhaps otherwise class-
based, invidiously discriminatory animus behind
the conspirators’ action. The conspiracy, in other
words, must aim at a deprivation of the equal en-
joyment of rights secured by the law to all.”
2. Congressional Intent in the Enactment of Section 1981
Was to Prohibit Unconstitutional, Purposeful Discrimina-
tion, Not to Create Liability Based on Disproportionate
Impact.
The discrimination addressed by Congress at time
of enactment of Sec. 1981 was intentional, not conse-
quential. The adverse impact theory did not evolve
until the EEOC Guidelines of 1970 and the interpretive
Griggs decision of 1971. Although serious doubt exists
as to whether Congress even intended adverse impact
standards without considerations of intent to apply to
Title VII, particularly in regard to public employers
(see Seelman, Employment Testing Law; 10 Urban
Lawyer 1, 49, 59, n 206); it is clear the Griggs
doctrine evolved solely in conjunction with Title VII.
—24—
One cannot avoid noting the inequity of holding the
County of Los Angeles liable for pre-1971 hiring prac-
tices under a standard that did not emerge until
1971. The disproportionate impact criterion is a crea-
ture of contemporary development, not mentioned by
Congress in 1964, or expressly provided for in Title
VII. In fact, prior to the issuance of the 1970 EEOC
Guidelines, that agency had not adopted adverse impact
as an indicium of prohibited racial discrimination.
It is difficult to envision how an agency without
the power to issue regulations having the force and
effect of law in regard to the statute which created
it (Gilbert v. General Electric, 429 U.S. 125 (1976)),
can change the standards of liability under a statute
predating it by 100 years and with regard to which
they have no regulatory relationship. Changes in a
federal agency position on testing principles indicate
the uncertain nature of employment discrimination con-
cepts even in the context of Title VII. The civil service
procedures developed in the late 19th and early 20th
centuries to promote merit hiring in public employment,
such as the Federal Service Entrance Examination at
issue in Washington v. Davis and those developed
nationally by state and local entities, were considered
models of public administration. It is inconceivable
that Congress in 1866 could have intended these to
constitute a violation of Sec. 1981 absent racial motiva-
tion in their use. What constitutes a proper testing
technique remains a matter of intense controversy (see
_ =
Brief of APA, Division 14, in Washington v. Davis).
Whether an employer has violated an 1866 civil rights
statute should not turn upon psychological testing stand-
ards in contemporary vogue.
B. Extension of Griggs Doctrine to Section 1981 Is
Inconsistent With Established Standards of Liability
in Non-employment Civil Rights Actions.
In addition to disagreeing with the application of
the Griggs standard in previous employment discrimina-
tion cases under Secs. 1981 and 1983, this Court
in Washington v. Davis, supra at 240, 2047, expressly
ruled it inapplicable to constitutional discrimination
claims in other contexts. The Court in Washington
stated, supra at 2051,
“A rule that a statute designed to serve neutral
ends is nevertheless invalid, absent compelling jys-
tification, if in practice it benefits or burdens
one race more than another would be far-reaching
and would raise serious questions about, and per-
haps invalidate, a whole range of tax, welfare,
public service, regulatory, and licensing statutes
that may be more burdensome to the poor and
to the average black than to the more affluent
white.”
The concern noted above will become a reality if
the contract clause in Sec. 1981 is interpreted and
applied in conjunction with the Griggs doctrine. For
example, the Court in Jones v. Alfred H. Mayer Co.,
supra, construed Sec. 1982 which prohibits discrimina-
tion in the sale and purchase of real property as
being directed against racially motivated practices. How-
ever, the right to purchase or sell real property is
_ =
exercised contractually. If disproportionate impact is in-
sufficient for liability under Sec. 1982, then a claimant
in a non-employment context need simply plead his
case under Sec. 1981 and thus invalidate the challenged
property related practice simply on the ground it is
more burdensome to minorities.
Racial discrimination claims not involving employ-
ment have been and will continue to be brought under
Sec. 1981 as well as Sec. 1983 and the Constitution.
There is nothing in the legislative history of Sec. 1981
which suggests that liability thereunder is to be premised
merely upon a showing of disproportionate impact or
that employment cases are to be accorded special treat-
ment and be subject to different standards of proof
than other civil rights claims encompassed by that
statute. The Circuit Court’s holding herein, necessarily
undermines the thrust of the Washington decision and
invites confusion and error as to the correct standard
for proving discrimination in future nonemployment
cases under Sec. 1981.
Sec. 1981, as noted earlier, broadly protects the
right of all persons in the United States to make
and enforce contracts and to have the full and equal
benefit of all laws. Discrimination actions alleging a
violation of that statute have been prosecuted against
a wide variety of public and private actions in which
the courts have uniformly applied the constitutional
deliberate intent standard, a fact emphasized by this
Court in Washington. Recent examples are:
Runyon v. McCrary, supra, (denial of admission
to publicly advertised private schools solely be-
cause of race); Hills v. Gautreaux, (1976) 425
U.S. 284 [96 S.Ct. 1538] (discriminatory housing
=
practices that selected sites to intentionally avoid
placing blacks in white neighborhoods); Jennings
v. Paterson, (Sth Cir. 1974) 488 F.2d 436 (con-
struction of road barricade to deliberately bar ac-
cess to blacks); Olzman v. Lake Hills Swim Club,
Inc., (2nd Cir. 1974) 495 F.2d 1333 (racially
motivated swim club exclusory policy); Bell v.
Southwell, (Sth Cir. 1967) 376 F.2d 659 (segre-
gated voting lists and booths).
In each case where liability was established it was
predicated upon evidence of deliberate intent, not a
neutral practice that in operation had a racially dispro-
portionate impact. The suggestion that racial impact
standing alone should now be the standard for liability
appears rejected by the majority in Washington when
the Court stated:
“Both before and after Palmer v. Thompson, how-
ever, various Courts of Appeals have held in sever-
al contexts, including public employment, that the
substantially disproportionate racial impact of a
statute or official practice standing alone and with-
out regard to discriminatory purpose, suffices to
prove racial discrimination violating the Equal
Protection Clause absent some justification going
substantially beyond what would be necessary to
validate most other legislative classifications. The
Cases impressively demonstrate that there is an-
other side to the issue; but, with all due respect,
to the extent that those cases rested on or expressed
the view that proof of discriminatory racial purpose
is unnecessary in making out an equal protection
violation, we are in disagreement.” (Emphasis
added).
Washington v. Davis, supra at 246, 2050.
—_28—
In footnote 12, Washington v. Davis, supra at 2050,
the Court listed the numerous cases with which they
disagreed including a substantial number dealing with
public employment.’ Many of these cases in both the
employment and non-employment contexts were brought
under Sec. 1981 as well as Sec. 1983. Notable examples
are:
Chance v. Board of Examiners, 458 F.2d 1167,
1176-1177 (CA2 1972); Bridgeport Guardians
v. Bridgeport Civil Service Comm’n., 482 F.2d
1333, 1337 (CA2 1973); Castro v. Beecher,
459 F.2d 725, 732-733 (CAl1 1972); Arnold
dealing with public employment include Chance v.
sent al pam Boe 458 F.2d 1167, 1176-1177 (CA2 1972);
Castro v. Beecher, 459 F.2d 725, 732-733 (CAI 1972); Bridge-
port Guardian v. Bridgeport Civil Service Comm'n, 482 F.2d
1333, 1337 (CA2 1973); Harper v. Mayor of Baltimore, 359
F.Supp. 1187, 1200 (D.Md.), aff'd in _pertient part sub nom.;
Harper v. Kloster, 486 F.2d 1134 (CA4 1973); v.
Hampton, 168 U.S.App.D.C. 62, 67, 512 F.2d 976, 981
(1975); but cf. Tyler v. Vickery, 517 F.2d 1089, 1096-1097
(CAS 1975), cert. pending, No. 75-1026. There are also
District Court cases: Wade v. Mississippi Cooperative Extension
Serv., 372 F.Supp. 126, 143 (ND Miss. 1974); Arnold v.
Ballard, 390 F.Supp. 723, 736, 737 (N.D. Ohio 1975); United
States v. City of Chicago, 385 F.Supp. 543, 553 (N.D. Ill.
1974); Fowler v. Schwarzwalder, 351 F.Supp. 721, 724 (D.
Minn. 1972), rev'd on other grounds, 498 F.2d 143 (CA8
74).
“7 en contexts there are Norwalk CORE v. Norwalk Re-
development Agency, 395 F.2d 920 (CA2 1968) (urban re-
newal); Kennedy Park Homes Assn. v. City of Lackawanna,
436 F.2d 108, 114 (CA2 1970), cert. denied, 401 U.S. 1010,
91 S.Ct. 1256, 28 L.Ed.2d 546 (1971) (zoning) ; Southern
Alameda Spanish Speaking Organization v. Union City, 424
F.2d 291 (CA9 1970) (dictum) omg Metropolitan H.
D. Corp. v. Village of Arlington Heights, 517 F.2d 409 (CA7),
cert. granted, December 15, 1975, 423 U.S. 1030, 96 S.Ct.
560, 46 L.Ed.2d 404 (1975) (zoning); Gautreaux v. Romney,
448 F.2d 731, 738 (CA7 1971) (dictum) (public housing);
Crow v. Brown, 332 cae 382, 391 (N.D. Ga. 1971),
aff'd, 457 F.2d 788 (CAS 1972) (public housing); Hawkins
v. Town of Shaw, 437 F.2d 1286 (CA5 1971), aff'd on
rehearing en banc, 461 F.2d 1171 (1972) (municipal services).
—29—
v. Ballard, 390 F.Supp. 723, 736, 737 (N.D.
Ohio 1975).
Of particular interest is the fact that the district court
in Arnold v. Ballard upon remand subsequent to Wash-
ington v. Davis held that discriminatory intent is re-
quired under §1981 and expressly disagreed with the
majority opinion in the instant case. (U.S.D.C. N.D.
Ohio, C73-478, March 14, 1978).
The respondents’ Opposition to the Petition for Cer-
tiorari reveals that they do not contend that the Griggs
standards should be transposed to nonemployment Sec.
1981 actions. Instead, they posit the theory that employ-
ment cases are a special class within Sec. 1981 to
which a different standard for adjudicating illegal dis-
crimination is applicable. There is, however, ao justifica-
tion in either the legislative history or judicial interpre-
tations of that section for such an expansive broad
contention. It is inconceivable that in 1866 the Members
of Congress had in mind the Griggs doctrine, or that
they possessed a unique concern for employment prac-
tices out of the many others that would affect the
recently emancipated blacks. Applying Griggs standards
only to employment cases under Sec. 1981 is a form
of statutory surgery contrary to the will of Congress.
It is clear that Sec. 1981 does not speak separately
as to employment practices, but refers to the making
of all contracts and the full and equal benefit of
all laws. Recognizing that Sec. 1981 on its face does
not provide for different considerations in employment
cases, the argument is advanced that Congress in en-
acting Title VII intended to modify Sec. 1981 only
as to employment discrimination claims, and, thereby,
borrow the Griggs standard.
axis
This effort at statutory reconstruction, while novel,
simply does not comport with the facts, the legislative
history or any judicial interpretation. There is, indeed,
a great deal of evidence that Congress in enacting Title
VII did not intend to eliminate purposeful intent as
an element of proof. Nevertheless, it is clear that Title
VII did not affect previously enacted civil rights laws
any more than Title VIII of the 1968 Civil Rights
Act affected Sec. 1982, (see Jones v. Alfred H. Mayer,
supra).
C. The Federal Civil Rights Acts of 1866, 1870, 1871
and the Constitution Should Be Harmonized by a
Consistent Standard for Determining Iilegal Dis-
crimination.
The various statutes comprising the CRA of 1866
and 1871 should be construed consistently in regard
to the standard of liability. As this and other related
cases demonstrate, there is a need to harmonize Sec.
1981 with the liability standards under Secs. 1982,
1983 and 1985(3), as well as the United States Consti-
tution. All of these statutes as well as the 13th and
14th Amendments were enacted during the same histori-
cal period in the form of equal protection legislation.
Discriminatory intent is the established standard under
the Constitution and in employment discrimination cases
under Sec. 1983; likewise, it is a required element
of proof under Sec. 1982 (Jones v. Mayer) and 1985
(3) (Griffin v. Breckenridge). The same principle
pertains to Sec. 1981.
Neither legislative nor judicial precedent justifies a
différent treatment of Sec. 1981 in general, and cer-
tainly not in the limited area of employment. It is
the Constitution and the Reconstruction Era Civil
enfiiian
Rights Acts that require harmonizing—not those stat-
utes and Title VII.
Besides being off the point, any theory that suggests
that Title VII and Sec. 1981 should be harmonized
by transposing Title VII standards of liability suffers
from ignorance of the legislative history, antecedents,
and purpose of each statute, as well as this Court's
determination that the statutes are distinct and inde-
pendent. It is simply wrong to believe that the statutes
can be truly “harmonized” at all in this fashion.
Rather than harmonize, a holding that the standards
of proof and liability under Sec. 1981 are operationally
the same, inevitably does violence to the procedures,
goals, rights and liabilities that Congress intended to
establish through the enactment of Title VII.
The Supreme Court in Washington v. Davis observed
the differences between the modern Title VII and the
14th Amendment. This distinction should continue to
be maintained by determining that outside of Title
VII, or some other statute that may specifically impose
a Griggs standard, the uniform liability standard for
employment discrimination is one of racial motivation
and discriminatory intent.
II
THE DECISION IS CONTRARY TO THE SUPREME
COURT'S RULINGS IN WASHINGTON V. DAVIS AND
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Vv. UNITED STATES.
A. The Decision Unjustifiably Ignores the Purposeful
Intent Holding in Washington v. Davis.
In Washington v. Davis, supra, this Court ruled
that the standard for adjudicating claims of racial dis-
crimination under Title VII was not the same standard
coliiion
for adjudicating such claims under the Constitution.
Although the complaint in Washington alleged a cause
of action under Sec. 1981 as well as the Constitution,
the Court did not specifically refer to Sec. 1981 in
its opinion. The rationale behind the Court’s decision,
however, would appear equally applicable to actions
under Sec. 1981 because the statute, like Sec. 1983,
was intended to provide statutory protection to consti-
tutional rights and while originating in the Civil Rights
Act of 1866, was reenacted with Sec. 1983 as part
of the Civil Rights Act of 1874.
The majority of the Circuit and District Courts®
have read the Washington v. Davis intent rule as encom-
passing both Secs. 1981 and 1983 claims, construing
both of the statutes to be governed by constitutional
principles. In light of the legislative history of these
two statutes and the thrust of this Court’s decision
in Washington, the correct view appears to be that
expressed after remand by the Tenth Circuit in Chicano
Police Officer's Association v. Stover, 552 F.2d 918
(1977), echoed by numerous federal courts:
®Chicago Police Officers Assn. v. Stover, 552 F.2d 918
(10th Cir., 1977); Arnold v. Ballard, 12 EPD 4 11, 224
(1976); United States.v. City of Chicago, 549 F.2d 415 (7th
Cir., 1977); City of Milwaukee v. Saxbe, 546 F.2d 693, =
(7th Cir. 1976); Johnson v. Alexander, ........ i. x
FEP Cases 894 (8th Cir. 1978); Harkless v. Sweeny Inde-
_ pendent School District, ........ as , 14 EPD ¢ 7669,
§295 (Sth Cir. 1977); Arnold v. Ballard, (C73-478, USDC
N.D. Ohio), Memorandum Opinion and Order dated Mar.
14, 1978; Lewis v. Bethlehem Steel Corp., 440 F.Supp. 949,
963 (1977); United States v. State of So. Carolina, ........
F.Supp. ........ , 15 FEP Cases 1196 (1977), (3-judge panel
that included two circuit judges); Crocker v. Boeing Co., 437
F.Supp. 1138 (1977); Dickerson v. U. S. Steel Corp., .....--.
F.Supp. ........ . 15 FEP Cases 753 (1977); Veizaga v. National
Board of Respiratory Therapy, 13 EPD 4 11, 525, 8875,
8881 (N.D. Ill., January 27, 1977).
“[T]he error in our holding and the views ex-
pressed by us is clear. We stated that we agreed
. with the view that the measure of a claim
under the Civil Rights Act is in essence that
applied to a suit under Title VII of the Civil
Rights Act of 1964. 526 F.2d at 438, 11 FEP
Cases at 1061. This was contrary to the principle
holding that came in Washington v. Davis, supra,
at 238, 12 FEP Cases at 1418. All of our reason-
ing and treatment of the case which proceeded
from the erroneous standard must be corrected.”
Supra at 920.
We believe that Judge Wallace of the 9th Circuit
in his dissenting opinion in the case at bar correctly
stated the law when he said,
“Because Sec. 1981 is peculiarly linked to the
Fourteenth Amendment, the standards pertaining
to that Amendment should also control Sec. 1981
. . . « [S]ection 1981 enjoys a unique historical
and conceptual relationship to the Fourteenth
Amendment which is not shared by Title VII.
Consequently, it is quite proper to assume absent
a contrary holding by the Supreme Court, that
the standards for establishing a prima facie case
of discrimination under Sec. 1981 and the Equal
Protection Clause of the Fourteenth Amendment
Should be the same: There must be proof of
discriminatory intent.”
Davis v. County of Los Angeles, 566 F.2d
1334 at 1348, 1349, (A. 111).
The Washington rule has been held applicable to
Sec. 1983 causes of action,” a fact recognized by
"Washington v. Davis, supra; Chicano Police Officer's Ass’n
v. Stover, 552 F.2d 918; Lewis v. Bethleh :
Supp. 945, 963-64 v em Steel, 440 F.
=
respondents (Opp. 8). Yet, there is no real basis
to distinguish Secs. 1981 and 1983 in regard to the
standards of liability governing employment discrimina-
tion as both are equal protection statutes (Sec. 1981
is expressly so denominated in the statute heading
in 42 U.S.C.) and derived from the Constitution. The
intent of Congress during the period 1866-74 as to
the nature of the discrimination each prohibited could
not have been different.
Any detailed analysis as to which statutes this Court
was referring to in Washington serves no meaningful
purpose, although it appears that the statutes were
5 U.S.C. Sec. 3304 and 5 C.F.R. Sec. 300.101 relating
to the District of Columbia's civil service procedures,
which, during the litigation, the District asserted includ-
ed the Griggs job-relatedness standards. Casting the
question in the context of a “statute” or the Constitution
is not conclusive.
Sec. 1981 as well as Sec. 1983 are clearly statutes,
but the issue is what standards of liability did Congress
intend to be applicable when they were enacted over
ninety years ago. This Court, while noting in Washing-
ton, supra at 2051, that under Title VII Congress
prescribed the job relatedness rule, expressly declined
to expand its ambit to include the Constitution or
any other statute except, perhaps, the District of Colum-
bia codes as allowed by the defendants in Washington.
To the contrary, the Court concluded that the “exten-
sions of the job-relatedness rule beyond areas where
it is already applicable by statute, such as the field
of public employment (referring, Petitioners believe,
to the District of Columbia code provisions because
Sec. 1981 contains no limitation to public employment)
:
:
;
:
}
:
:
i
= =
should await legislative prescription”, Washington v.
Davis, supra at 2051, 2052.
Finally, although too obvious to merit extended dis-
cussion, the circuit court’s Van Davis decision effectively
renders meaningless in great part the ruling in Washing-
ton v. Davis. Since there are a great variety of cases
where Title VII does not apply, but Sec. 1981 and
the 14th Amendment do, the intent requirement of
the Amendment could be easily avoided by the simple
expedient of pleading under Sec. 1981. If the standard
for liability under Sec. 1981 was the same as that
under Title VII, there was little reason for Congress
to extend Title VII to public employers in 1972.
B. The Decision Fails to Properly Distinguish Between
Pre- and Post-Title VII Hiring Practices Contrary
to International Brotherhood of Teamsters v.
United States.
The circuit court’s ruling herein acts to make Title
VII retroactive as to public agencies and to destroy
any distinction between pre- and post-Act hiring prac-
tices. This conclusion is symptomatic of the lower fed-
eral courts erroneously ignoring, since Griggs, the dis-
tinction between the Civil Rights Act of 1866 and
1870 and the Civil Rights Act of 1964. Since most dis-
crimination suits are filed under several statutes, the
tendency has been to blur the statutory distinctions
which, in many cases involving private employers, may
have been of no moment since Title VII also applied
fully.
It is instructive to note that the lower court Sec.
1981 cases which borrowed the lesser standard of lia-
bility from Title VII were decided in the year immedi-
ately following the Griggs decision, at a period when
—-_ =
Title VII already had been applicable to private em-
ployers for at least seven years. In retrospect, it can
be seen, beginning with Chance v. Board of Examiners,
supra, that in the field of public employment the lower
courts have failed to maintain the sharp focus distin-
guishing Secs. 1981/1983 and later the enacted Title
Vil—although the Circuit Courts in Chance, Castro
v. Beecher, 459 F.2d 725 (ist Cir. 1972) and Bridge-
port Guardians v. Bridgeport Civil Service Commission,
482 F.2d 1333 (2nd Cir. 1973), treated Secs. 1981
and 1983 together as constitutional equal protection
statutes.
The error in this interpretational leap can be made
evident by considering its effect in the context of a
private employer. If the Griggs decision had been
decided in 1966 instead of 1971, then the circuit court’s
conclusion in the instant case that in terms of liability
there is no operational distinction between Title VII
and Sec. 1981, would have necessarily made Title
VII standards through the mode of Sec. 198! applicable
to private employers prior to its effective date of July,
1965. The fact is, however, that the lower court deci-
sions like the Davis case herein, were not decided
until long after any applicable statute of limitations
had run on a Sec. 1981 claim against a private employ-
er. As the instant case vividly illustrates, the circum-
stance is the opposite with public employers. By the
theory that the Griggs standard is now applicable to
Sec. 1981 claims, the effective date of Title VII as
to public employers has been in practical terms, ad-
vanced from three to six years preceding March 24,
1972, depending on the particular jurisdiction’s statute
of limitations. This is the practical effect despite the
* J
= =
continual admonition by the federal courts that Title
VII is not retroactive.®
The circuit court opinion in the case at bar ignores
the distinction recognized by this Court in Hazelwood
School District v. United States, .... U.S. ...., 97 S.Ct.
2736 (1977), and International Brotherhood of Team-
sters v. United States, 431 U.S. 324, 97 S.Ct. 1843
(1977), between liability predicated upon pre- and
post-Title VII hiring practices. In Hazelwood, the Su-
preme Court reversed the decision of the circuit court
because:
“[T|he Court of Appeals totally disregarded the
possibility that this prima facie statistical proof
in the record might at the trial court level be
rebutted by statistics dealing with Hazelwood’s hir-
ing after it became subject to Title VII. Racial
discrimination by public employers was not made
illegal under Title VII until March 24, 1972.
A public employer who from that date forward
made all its employment decisions in a wholly
nondiscriminatory way would not violate Title VII
even if it had formerly maintained an all-white
work force by purposefully excluding Negroes.”
Hazelwood School District v. United States, ...
US. ...., 97 S.Ct. 2736 at 2742.
The Court further noted in footnote 15 of the Opin-
ion that a public employer even before the extension
of Title VII in 1972 was subject to the command
Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843
(1977); Patterson v. American Tobacco Co., 535 F.2d 251,
pag 1976); Robinson v. Lorillard, 444 F.2d 791 (4th
ir. 1).
=x
of the 14th Amendment not to engage in purposeful
discrimination, the indication being that constitutional
standards governed liability for pre-Title VII hiring
practices.
In /nternational Brotherhood of Teamsters v. United
States, supra, the Court again admonished that the
employer was governed by different standards of proof
depending on when Title VII became applicable and
must be afforded the opportunity to show,
“. . . that the claimed discriminatory pattern is
a product of pre-Act hiring rather than unlawful
post-Act discrimination, or that during the period
it is alleged to have pursued a discriminatory
policy it made too few employment decisions to
justify the inference that it had engaged in a
regular practice of discrimination.”
International Brotherhood of Teamsters v.
United States, supra at 1867.
The Court’s recognition of a distinction in treatment
as well as effect of pre- and post-Title VII hiring
practices is meaningful only if the standards of liability
are different. If an employer could be held liable under
Sec. 1981 for practices that antedated Title VII merely
because they had a disproportionate impact and had
not been shown statistically to be predictive of job
performance, little would be gained by permitting an
employer in a Title VII action to distinguish those
employment practices occurring before the Act was
effective.
aS
enlificn
Ill
THE CIRCUIT COURTS RULING FRUSTRATES THE
COMPREHENSIVE CONGRESSIONAL SCHEME EM-
BODIED IN TITLE Vil.
A decision that there is no operational distinction
between Sec. 1981 and Title VII in regard to standards
of liability will result in serious unsettling and counter-
productive effects on Title VII's comprehensive ap-
proach to the enforcement of equal employment rights.
Congress, while enacting Title VII in 1964 and
again before extending it to public entities by the
1972 amendments, engaged in considerable debate con-
cerning the terms of the Act. Consideration was given
as to what employers should be excluded from cover-
age of the Act and what procedural safeguards should
be provided in the administrative enforcement proceed-
ings. Detailed provisions governing the exhaustion of
administrative remedies (Sec. 706(b)(c)(d) and (e)),
conciliation efforts (Sec. 706(b)), record-keeping and
access (Sec. 709), and prerequisites to litigation (Sec.
706(f)(1)), were debated and ultimately enacted. Title
VII as finally enacted incorporated the concerns of
interested parties and Congress as to safeguarding and
accommodating the rights of the employer and the
individual. However, it is precisely these rights, repre-
senting the collective will of Congress, hammered out
after long debate, and having become defined and
settled after years of experience, utilization and judicial
interpretation that are threatened by the circuit court’s
decision in this case.
Aside from the standard of liability, the major distinc-
tion between Title VII and the older Civil Rights
Acts is in the area of coverage and administrative
enforcement procedures. All of the forms of remedies
colt
available under Title VII are likewise available under
Sec. 1981° including attorneys’ fees since the enact-
ment of the Civil Rights Attorneys Fees Awards Act
of 1976 (PL 94-559, 90 Stat 2641), amending 42
U.S.C. Sec. 1988. Extending the Griggs doctrine to
Sec. 1981 suits reduces the difference between the
two statutes to primarily the administrative enforcement
procedures and this, when coupled with the more gen-
erous remedies under Sec. 1981, must inevitably act
to frustrate the comprehensive administrative structure
that Congress wished implemented with the passage
of Title VII. The primary areas of the congressional
plan adversely affected are: 1) Jurisdictional filing
prerequisites, 2) employers included; 3) limitations on
remedies, 4) conciliation and administrative review pro-
cedures, 5) uniformity of enforcement procedures, and
6) retroactivity.
A. Jurisdiction Filing Prerequisites Evaded.
Under Title VII, a discrimination charge with the
EEOC must be filed within 180 days after alleged
unlawful employment practice occurred. Section 706,
(e), 42 U.S.C. Sec. 2000e-5(e) as amended, 1972.
Thereafter, a civil complaint must be filed in federal
court within ninety days of receipt of the notice of the
right to sue. 42 U.S.C. Sec. 2000e-5(f)(1). The Su-
preme Court has held that these prerequisites to a fed-
*In fact, in many instances the Sec. 1981 remedy is
more expansive, and punitive damages are available under Sec.
1981 but not Title VII (Johnson v. Railway Express Agency,
Inc., supra at 460). The similar remedies available under Sec.
1981 are back pay (Sabala v. Western Gillette, Inc., 516
F.2d 1251 (1975)), declaratory relief, including reinstatement,
romotions and quotas for the class (Sabol v. Snyder, 524
.2d 100a (10th Cir. 1975), Schei & Grossman, Employment
Discrimination Law, p. 639).
— =
eral civil action are jurisdictional. McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973); Alexander vy.
Gardner-Denver Co., 415 U.S. 36 (1974).
The Court noted in United Air Lines v. Evans,
431 U.S. 553, 97 S.Ct. 1885, 1889 (1977), that
a claim based on a discriminatory act that was not
made the basis for a timely EEOC charge was barred
and merely constituted an unfortunate past event that
had no present legal consequences. However, the failure
to comply with any of important Title VII jurisdictional
prerequisites will be of little consequence if the plaintiff
can take advantage of Title VII’s Griggs doctrine merely
by filing a complaint under Sec. 1981, which is gov-
erned only by a less restrictive and non-uniform statute
of limitations. Observance of Title VII's administrative
requirements is of no significance as the filing of a
Title VII charge and resort to the administrative ma-
chinery are not prerequisites for institution of a Sec.
1981 action. Johnson v. Railway Express Agency, Inc.,
supra at 460, 95 S.Ct. 1716, 1720 (1975).
B. Liability Standards Extended to Employers Con-
gress Desired Excluded.
Transposing Title VII standards to Sec. 1981 actions
would, contrary to the clear legislative intent, effectively
bring certain agencies and individuals within Title VII's
more restrictive embrace. Congress, when it originally
enacted Title VII in 1964, expressly made the Act
inapplicable to certain employers, most notably federal,
state and local public entities. 42 U.S.C. Sec. 2000e(b)
(c), eff. July 2, 1965."° As the instant case so
**Until March 24, 1972, 42 U.S.C. $ 2000e(b) read “but
such item does not include the United States, ... or a
State or political subdivision of a State... .”
—
clearly demonstrates, if the Circuit Court's decision
is upheld these pre-1972 exclusions will be eroded
by judicial fiat.
While public agencies have now been brought within
the ambit of Title VII by the 1972 amendments, there
still remain several categories of employers that Con-
gress intends to exclude from its coverage. Employers
covered by the Act must be persons engaged in an
industry affecting commerce who have fifteen or more
employees for each working day in eac> of twenty
or more calendar weeks in the current or preceding
calendar year (Sec. 701(b) of Title VII)). Bona fide
private membership clubs (Sec. 701(b)(2)), Indian
tribes (Sec. 701(b)), and the United States Govern-
ment (701(b)) are also excluded.
Perhaps, most noteworthy of the exemptions is the
Armed Forces which the federal courts have consistently
held not to be covered by Title VII as it is not
an “employer” as defined by the Act. (Johnson v.
Alexander, 572 F.2d 1219, 16 FEP 894 (8th Cir.
1978)). As the Armed Forces can be sued under
Sec. 1981, it takes little imagination to perceive the
effect on the military if the circuit court opinion herein
becomes the settled law.
C. Remedies.
The effect of the circuit court’s ruling is to encourage
plaintiffs to seek relief under Sec. 1981 rather than
Title VII, because of the more generous remedies ob-
tainable under Sec. 1981 while still having the advan-
tage of Title VII's liberal standards of proof. Unlike
Title VII, actions under Sec. 1981 permit compensatory
as well as punitive damages and there is no two-
year limitation on back pay awards.
— =
D. Conciliation and Administrative Review Procedures
Frustrated.
The greatest damage flowing from the circuit court’s
decision is that done to the conciliation and adminis-
trative review procedures which Congress designed to
encourage settlement of cases short of litigation and,
thus, avoid the judicial overload bound to ensue as
a product of increased enforcement activity. Indeed,
conciliation plays such a central role in the scheme
of Title VII that the EEOC is required by law to
refrain from commencing a civil action until it has
discharged its administrative duties. Occidental Life
Insurance Co. v. EEOC, 432 U.S. 355 (1977).
In rejecting a contention that the EEOC was required
to conciliate only the precise charges made by the
complainant, the district court in EEOC v. Sherwood
Medical Industries, ........ F Supp. ........ , 17 FEP Cases
444 (1978), remarked:
“This contention, if accepted, would run con-
trary to congressional intent and could well have
the effect of rendering the conciliation requirement
of an empty formality. The mandate that con-
ciliation be attempted is unique to Title VII and
it clearly reflects a strong congressional desire
for out-of-court settlement of Title VII violations.
See Culpepper v. Reynolds Metal Co., 421 F.2d
888, 2 FEP Cases 377 (Sth Cir. 1970); Oatis
v. Crown Zellerbach, 398 F.2d 496, 1 FEP Cases
328 LRRM 2782. The legislative history of the
1972 amendments confirms that Congress viewed
judicial relief as a recourse of last resort, sought
only after a settlement has been attempted and
failed. Conciliation is clearly the heart of the
Title VII administrative process.”
antitins
To extend to civil rights claimants the major advan-
tage of Title VII, the standards of discrimination and
burdens of proof, to claims under Sec. 1981 without
Title VII’s concomitant limitations would run directly
contrary to the Congressional intent to settle out of
court as many discrimination claims as possible."’
The heavy emphasis in Title VII on conciliation
efforts before litigation cannot be viewed lightly. The
administrative procedures set forth in Title VII reflect
the congressional intent to provide victims of discrimina-
tion with appropriate redress, while, at the same time,
not imposing unreasonable burdens upon employers.
E. Uniformity of Enforcement Actions Endangered.
The confusion resulting from the circuit court holding
is illustrated by a consideration of the differing statutes
of limitation applicable to Sec. 1981 actions. This
Court and the circuit courts have uniformly held
that the statute of limitation for Sec. 1981 actions
is the most analogous state statute of limitations. John-
son v. Railway Express Agency, Inc., supra. Thus,
the time limit on such actions ranges from one year
to six years depending on the jurisdiction in which
the action is filed.* In some instances the statute
“In urging the ion of amendments to Title VII in
972, b.., FF, SA noted that during the first
five years of the EEOC’s existence it received more than 52,000
charges. During the first 7% months of the 1971-72 fiscal
year the Commission received 14,644 charges—U.S. Cong. and
Admin. News °72, p. 2139.
12-year Statute of Limitation, Penn., Dickerson v. U-S.
Steel Corp., ........ F.Supp. ........ , 15 FEP Cases 752 (1977).
l-year Statute of Limitation, Tenn., Johnson v. Railway Express
Agency, Inc., supra at 463.
— =
of limitations varies within the same state.” An addi-
tional lack of uniformity is created by the fact that
provisions regarding tolling, revival and application are
interpreted under state law. Johnson v. Railway Express
Agency, Inc., supra.
Unlike the situation under Title VII, employers, many
of whom have offices in several jurisdictions, would
not be governed by uniform filing and limitation require-
ments under Sec. 1981; yet, if the circuit court’s conclu-
sion in the instant case is accepted, these employers
would be subject to Title VII’s more rigorous and
demanding standards of proof. As this Court observed
in Occidental Life Insurance Co. v. EEOC, 432 USS.
ee - ein (1977), in noting a distinction between
Title VII and other actions, the “Title VII defendant
is alerted to the possibility of an enforcement suit
within ten days after a charge has been filed. This
prompt notice serves, as Congress intended, to give
him an opportunity to gather and preserve evidence
in anticipation of a court action”.
The need to provide procedural safeguards for the
rights of employers was clearly emphasized by Congress
when the 1972 Title VII amendments were being con-
sidered. The congressional committee, noting that em-
ployers could be subject to enormous mandatory penal-
ties in the absence of a definite limitation and that
due process required prompt notice of a charge, stated
in the Committee Report, “to avoid the litigation of
State charges and to preclude respondents from being
subject to indefinite liabilities, it is clear that a precise
In Colorado a 2-year (Ray v. Safeway Stores, Inc., .......
PSP. ........ (1976))), and a 6-year Statute of Limitation
(Jackson v. Continental Oil Co., ........ F.Supp. ........ (1975))
have been held to apply.
ontitiu
statute of limitations is needed. . . . It seems patent
that failure to require timely notice violates all concepts
of due process. In view of the specific abuses regarding
service of charges under Title VII, a specific require-
ment for service on the respondent within a specified
time period (5-7 days) is a prerequisite to maintaining
minimum standards of process”. U.S. Cong. & Adm.
News °72, p. 2175.
A holding that the measure of discrimination is
operationally the same under Sec. 1981 and Title VII
would, thus, in practice operate to deprive the defendant
of essential procedural safeguards noted in Occidental.
F. The Decision Renders Title VII Retroactive as to
Public Agencies,
The extension of Title VII liability standards to
Sec. 1981 actions challenging public agency hiring prac-
tices that occurred before the effective date of Title
VII undeniably renders Title VII retroactive, contrary
to the decisions of this Court.
In International Brotherhood of Teamsters v. United
States, supra at 1867, and Hazelwood School District
v. United States, ........ ae , 97 S.Ct. 2736,
2742, the Supreme Court expressly noted the difference
in treatment between pre- and post-Title VII hiring
practices and stated that discrimination by public em-
ployers under Title VII was not made illegal until
March 24, 1972. Earlier in Franks v. Bowman Trans-
portation Company, 424 U.S. 747, 759 n.12, the Court
in affirming the principle that the effect of the Act
was prospective, not retrospective, quoted an interpre-
tive memorandum from the Congressional Record. This
memorandum states in pertinent part:
— =
“Title VIi would have no effect on establishing
seniority rights. Its effect is prospective and not
retrospective. Thus, for example, if a business
has been discriminating in the past and as a
result has an all white working force when the
Title VII comes into effect the employers’ obliga-
tion would be to simply fill future vacancies on
a non-discriminatory basis.”
Franks v. Bowman Transportation Co., 424
U.S. 747, n.12 at 759.
The circuit courts have uniformly held that Title
VII is not retroactive and provides neither liability
nor a remedy for discriminatory acts occurring before
its effective date. Patterson v. American Tobacco Co..,
535 F.2d 257 (4th Cir. 1976); Robinson v. Loril-
lard, 444 F.2d 791 (4th Cir. 1971): Place v. Wein-
berger, 497 F.2d 412 (6th Cir. 1974).
In view of the settled law, it makes little sense
to attempt to distinguish the present case simply because
liability was found under Sec. 1981 when that liability
was predicated entirely upon a standard that evolved
solely from an interpretation of Title VII (Griggs v.
Duke Power).
Although this Court has recognized that Title VII
and Sec. 1981 are separate and distinct statutes upon
which a claimant can base a claim of racial discrimina-
tion, it is completely appropriate in determining the
liability standard under Sec. 1981, to consider Con-
gress’s understanding of the scope of Sec. 1981 at
the time they enacted Title VII. In view of the legisla-
tive history (see pp. 16-17, infra) of Title VII, the
conclusion is inescapable that Congress intended that
Statute to create additional rights and remedies in the
—43—
fieid of employment discrimination not available under
the then existing law—for otherwise the Act’s proce-
dural and jurisdictional limitations would have no mean-
ing. In this limited but significant sense then, Sec.
1981 should be construed to further, not frustrate,
the intent of Congress. If Congress had believed at
the time it enacted Title VII that they were merely
restating the liability standards under the venerable
Sec. 1981 or were changing them, then it acted at
cross-purposes to their desire to expand remedies when
it imposed procedural limitations.
IV
NO TITLE VII VIOLATION PROVEN.
The first recruit class hired by the petitioners after
the effective date of Title VII was composed of 50%
blacks and Mexican-Americans. The individuals in this
class took the 1972 written aptitude test of which
97% received passing scores, and advanced to the
oral interview and subsequent phases of the examination
process. The subsequent elements in the process did
not have an adverse impact on minorities and the
respondents in their first and second amended com-
plaints alleged that the ultimate hires were nondiscrim-
inatory (A. 5, 6). All subsequent hires, of course,
were in accordance with the Court’s judgment of July
20, 1973 requiring that 40% of all new hires annually
be black and Mexican-American.
As the respondents have agreed, the quota hiring
order was necessarily affirmed on the basis of hiring
that occurred prior to the effective date of Title VII
(Opposition p. 29). To assert that the petitioners “uti-
lized” the 1972 test after Title VII's extension to
public agencies is misleading in the context of the
—49—
facts and forms no legally cognizable basis for a finding
that Title VII has been violated. Written tests have
no impact until actually used as a basis for hiring
or rejection of applicants. It is conceded that the 1972
written test was not used in any adverse sense toward
minorities in accepting or rejecting them for employ-
ment. Ninety-seven percent of all applicants passed
the test and all advanced to further, admittedly non-
discriminatory, stages in the selection process. Only
in this way was the 1972 test actually used and is
the only factual basis upon which a court can adjudicate
whether Title VII has been violated. The petitioners’
uneffectuated proposal in the face of an extremely
serious shortfall in firemen to interview on a preliminary
basis the top 544 applicants taking the 1972 written
test does not constitute a violation of Title VII any
more than it can support the quota hiring order which
the respondents concede was predicated upon claimed
earlier Sec. 1981 violations. The interviews when finally
commenced were not limited to the top 544 candidates,
and the uneffectuated proposal obviously played no
role in the ethnic composition of the petitioners’ fire
department.
Not only has no effective discriminatory act occurred
since March 24, 1972, the threshold conditions for
asserting a Title VII violation were never reached.
A violation of Title VII requires proof of a pattern
and practice of discrimination. Isolated incidents, even
with some discriminatory effect, are insufficient to estab-
lish liability under that statute. Hazelwood School Dis-
trict v. United States, ...... US. ...... (1977), 97 S.Ct.
2736. There is simply no evidence in the record to
sustain any finding of a pattern and practice of discrimi-
nation by petitioners after Title VII became effective.
— =
The respondents’ minimum height standard cannot
independently constitute a violation of Sec. 1981, Sec.
1983 or Title VII simply because there was no dis-
criminatory intent behind its application and the hiring
after the effective date of Title VII was accomplished
pursuant to the Court’s quota order. The respondents
expressly declined before the district and circuit court
to seek elimination of the height standard’* and the
hiring results since 1972 (55% blacks and Mexican-
Americans) belie any adverse effect in operation of
such a standard. Minimum height standards have been
upheld as having a rational basis in non-Title VII
cases (Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975),
cert. den. U.S. Supreme Court). Finally, the respond-
ents lacked standing to challenge the height requirement
as none of the named plaintiffs (whether applicants
or incumbents) had suffered any injury in fact as
a consequence of its application since each met the
minimum standard.
An independent question exists as to whether a public
agency can be found guilty of violating Title VII
in the face of an express finding of no discriminatory
intent. The congressional debates on Title VII and
at the time of its extension to public employers clearly
indicate that Congress did so under the authority and
scope of the Fourteenth Amendment (see Legislative
History, U.S. Cong. & Adm. News °72, p. 2154;
“The respondents stated the basis for their circuit court
appeal thus, “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. Plaintiffs-
appellants did not seek below and do not seek on this appeal,
an order enjoining the use of 5’7” height standard”. (Brief
of Appellants, 9th Cir., p. 3, lines 21-27.)
Ee a i ee
ee ee ey
—51—
H.R. Rep. No. 92-238, p. 19 (1971); S. Rep. No.
92-415, pp. 10-11 (1971)). The standards of liability
for employment discrimination under Title VII as to
public employers can be no greater than that prescribed
by the Constitution. Two federal courts thus far have
held that purposeful interest is a requirement for estab-
lishing a Title VII violation against state agencies or
its political subdivisions.
Scott v. City of Anniston, (N.D. Ala. 1977),
430 F.Supp. 507;
Friend v. Leidinger, (D.C., E. D. Va. 1977),
17 EPD 4 8392, 5978.
The U.S. Supreme Court has twice declined to pass
on the issue on the basis that it was not properly
before the Court. See Dothard v. Rawlinson, ........
| ae , 97 S.Ct. 2920 at 2724 n.1, and Hazelwood
School District v. United States, ........ | ee , 97
S.Ct. 2736 at 2731 n.1.
Vv
THE AFFIRMED QUOTA HIRING ORDER CLEARLY
EXCEEDS THE COURT’S REMEDIAL AUTHORITY.
The district court’s quota hiring order was illegal
and exceeded its jurisdiction for the following reasons:
1) The absence of a finding of intentional discrimina-
tion; 2) the fact that the discriminatory acts, if any,
causing the present work force/labor pool disparity
that is the object of the Court’s order took place
prior to the effective date of Title VII and the appli-
cable statute of limitations for Sec. 1981; 3) the lack
of standing as found by the circuit court because the
plaintiff class did not include past applicants who were
affected by any past practices; and 4) the quota order
is totally unrelated to any proven effects of discrimina-
SSS——a_a_QqQQ°Q Lk. 2.2. °;0:
tion and attempts to mandate ethnic balance in the
work force contrary to Sec. 703(j) of Title VII.
None of the named plaintiffs not already employed
by the fire department had been applicants for the
1969 or any other prior examination. The respondents’
complaint specifically alleged that the suit was brought
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 (A. 3). The first and only
examination for County firefighter they had taken was
the 1972 examination which in application had no ad-
verse effect. The plaintiffs that were current firemen
on the force, had, of course, passed some previous
exam and were thereafter employed. The circuit court
correctly concluded the plaintiffs lacked standing to
challenge defendants’ prior use of a written qualification
test in 1969.*° In light of the clear facts and this
Court’s ruling in East Texas Freight v. Rodriguez,
431 U.S. 395 (1977), such a finding was inescap-
able.
It thus follows that if the district court had no
jurisdiction to declare the use of the 1969 test illegal
(even absent a deliberate intent requirement), the court
had no jurisdiction to impose a quota hiring order
that could only be for the purpose of providing a
The Court's ruling on lack of standing would necessarily
encompass any previous employment practice not applied to
plaintiffs as they could perforce have suffered no injury if
they had not been candidates. Footnote 6 (A. 83) to the circuit
court’s majority opinion indicates that this was their under-
standing.
afin
remedy for the consequences of a test the plaintiffs
had no standing to challenge.
Contrary to respondents’ assertions in their Oppo-
sition to the Petition herein, merely being of the same
race as the alleged discriminatees is not sufficient to
confer standing in the absence of an individual claim
of injury. Respondents’ position is contrary to this
Court’s decision in East Texas Freight v. Rodriguez
and if adopted, must necessarily destroy the established
concepts of standing. In this regard, it is of particular
significance that not only were there no past rejected
applicants named as plaintiffs, the suit was expressly
brought only on behalf of current and future appli-
cants (A. 5, 6).
Assuming arguendo that deliberate intent to discrimi-
nate is not necessary for liability under Sec. 1981 and
that somehow the plaintiffs have standing to obtain
a quota order as a remedy for a test they have no
standing to challenge, the quota order requiring the
entire fire department to achieve racial balance with
the County’s general population exceeds the Court’s
remedial authority for the following reasons: 1) It
attempts to remedy purported discrimination (not sup-
ported by anv finding of a discriminatory act) that
could only have occurred prior to the three-year statute
of limitations cut-off period governing Sec. 1981 claims
(January 11, 1970); 2) The order is contrary
to the holding in United Air Lines v. Evans, 431
U.S. 553 (1977) that time barred claims have no
The petitioners, pursuant to the quota hiring order, have
to date hired more blacks and Mexican-Americans (207) than
the number of persons of all races (187) hired as a result
of the 1969 written test.
—54—
present legal consequences. The order is clearly intended
to remedy past discriminatory practices unconstrained
by any time limitations. In fact, the plaintiffs admit
that past applicants who are time barred from suing
will benefit from the quota order when they reapply.
(Opp. 32.) At page 29 in respondents’ Opposition
they state: “Plaintiffs agree that the remedial hiring
order herein was based on a pattern and practice
of discriminatory practices that were unlawful only
under § 1981, not Title VII.” In this context, any
statute of limitations, whether under Sec. 1981 or Title
VII, is rendered meaningless; 3) Contrary to the
principle that quota orders are limited to the extent
of the violation proven and issued only in extreme
circumstances, the district court’s sweeping order herein
simply seeks to achieve racial balance between the
work force and the general community. This is directly
contrary to the intent of Congress as expressed in
Sec. 703(j) of Title VII, as well as several pronounce-
ments of this Court.
Recently, including the decision in Regents of the
University of California v. Bakke, ........ ees
17 FEP Cases 1000 (1978), the Supreme Court hes
expressed concern that the remedies for discrimination
not exceed the effects of the established violation. In
Milliken v. Bradley, 418 U.S. 717, the Supreme
Court found the school desegregation order re-
quiring the crossing of district boundaries was not
proper because there was no predicate of a constitu-
tional violation or the identification of any significant
segregative effects resulting from unconstitutional con-
duct. The order was held impermissible because it
was not commensurate with the constitutional violation
— =
to be redressed. This principle was restated in Hills
v. Gautreaux, 96 S.Ct. 1538 (1976).
Limitations on a trial court’s remedial authority in
race discrimination cases was again underscored in
Dayton Board of Education v. Brinkman, 433 US.
406, 97 S.Ct. 2766 (1977), wherein the District Court
after finding constitutional violations ordered district-
wide racial student redistribution until each school was
brought within 15% of the black/white population
ratio of Dayton. The Supreme Court vacated and re-
manded on ground that the federal court had exceeded
its remedial authority to tailor the remedy to the extent
of the constitutional violation. The Court held that
there was no justification for the disparity between
the evidence of the effects of the constitutional violation
and the sweeping redistribution order.
Although Milliken, Hills, and Dayton involved illegal
school segregation, the principle that the remedy must
not exceed the extent of the violation proven is equally
applicable to employment discrimination cases, particu-
larly when the effect of such a remedial order is
to discriminate in a very real sense against other races
not sharing any culpability for past discriminatory prac-
tices. The quota order in this case is very similar
in scope to those found defective in Milliken and
Dayton. Premised on the most tenuous of grounds
and unsupported by any evidence, it assumes that per-
fect racial parity would have been achieved in the
absence of discrimination—and therefore ordered quota
hiring until the entire department achieved current
racial parity." As emphasized herein, this was under-
‘'The current composition of the entire department has
evolved during at least a 30-year period. Indeed, unless one
(This footnote is continued on next page)
—-— =
taken in complete disregard of standing considerations,
the statute of limitations, and any correlation between
the effects of the only act found illegal (the 1972
written test) and the quota order. This is particularly
unfortunate because of the complete lack of any identi-
fiable victims and the respondents’ express allegation
that they represented only present and future applicants.
Limitations on the scope of quota orders in employ-
ment discrimination cases should be consistent with
those applicable to other remedies, such as reinstate-
ment, back pay and retroactive seniority, all of which
this Court has construed to be limited by the statute
of limitations, the damage actually proven, or by the
scope of the applicable statute under which the violation
was found.’* Franks v. Bowman Transportation
Company, 424 U.S. 747 (1976). Indeed, the limitations
on racial hiring quotas should be even more stringent
because, unlike the other remedies such as back pay
and retroactive seniority, they impact not so much
upon the employer, but upon innocent individuals who
did not share in the discriminatory practices or profit
therefrom.
The majority in Bakke observed this inherent unfair-
ness in remarking that while racial classifications have
been designed as remedies for the vindication of consti-
tutional entitlements, “the scope of the remedies was
assumes that all of the 1760 firefighters on the force had
been hired in the eight years immediately preceding the lawsuit,
the quota order seeks to remedy unproven discrimination occur-
—. even before the original enactment of the Title VII in
1964.
18[n Albemarle v. Moody, 422 U.S. 421 at 423, the
Supreme Court stated that there should be no drastic distinction
between injunctive and back pay relief, a concept at odds
with the quota order herein.
—_— =
not permitted to exceed the extent of the violations
.” and further that “. . . the remedial action
usually remains subject to continuing oversight to assure
that it will work the least harm possible to other inno-
cent persons competing for the benefit”. Regents of the
University of California v. Bakke, slip op. pp. 31,
38, supra at 1014-17. Again in Furnco Construction
Corp. v. Waters, ........ (1978), the Court
admonished that “[i|t is clear beyond cavil that the
obligation imposed by Title VII is to provide an equal
opportunity for each applicant regardless of race with-
out regard to whether members of the applicants’ race
are already proportionately represented in the work
force”. (Emphasis in original).
The sweeping quota order in the instant case patently
violates the above principles and furnishes independent
grounds for reversal.
Conclusion.
The facts of the instant case reveal that it is the
classic one to measure the liability distinctions between
Title VII and Sec. 1981 and to harmonize Secs. 1981,
1982, 1983 and 1985(3) by recognizing a uniform
standard of liability for non-Title VII employment dis-
crimination claims. There were no claims of discrimina-
tory hiring after Title VII became effective, no dis-
criminatory intent in the use of any hiring practices,
and no standing by plaintiffs to challenge the pre-
1972 hiring practices. This case is the »ppropriate
one for the Court to make its Washington v. Davis
intent rule complete and consistent in application to
similar equal protection and constitutionally derived
statutes of the same era.
enfin
Both Congress and this Court have recognized the
unique nature of Title VII resulting in its being con-
strued differently than predecessor anti-discrimination
statutes. It is only within the context of Title VII,
a statute that was prior to 1972, expressly inapplicable
to public agencies such as the Petitioner, that the
Griggs doctrine has evolved. Incalculable harm will
result if legislative history and judicial precedent are
ignored and unique Title VII derived standards are
transposed to independent Sec. 1981. These include
as a minima its retroactive effect on public agencies,
the thwarting of the congressional limitations forming
an integral part of Title VII which will inevitably
encourage a flood of litigation and, perhaps most signifi-
cantly, the expansion of the Griggs doctrine beyond
the employment context.
Liability was found upon a showing of potential
but unrealized disproportionate impact of the 1972
test, the circuit court holding that the respondents
lacked standing to challenge the 1969 test. The quota
hiring order was, therefore, predicated solely upon
the current racial composition of the Fire Department,
without distinction between pre- and post-Title VII
hiring and without proof of any illegal pre-Title VII
practices.
The excessive quota order, in complete disregard
of standing, the Statute of Limitations, and totally
divorced from the effects of any proven violation is
clearly beyond the district court’s authority and, by
itself, constitutes compelling grounds for reversal.
—59—
Judgment of the Ninth Circuit should be reversed
with direction that the order of the district court be
vacated and the Complaint dismissed.
Respectfully submitted,
JOHN H. Larson,
County Counsel,
WILLIAM F. STEwarrt,
Chief, Labor Relations Division,
Attorneys for Petitioners.
September, 1978.
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