# Petitioners Brief — County of Los Angeles v. Davis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0957%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1979 - **Citation:** 440 U.S. 625 ## Text 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0957%3A04. Public record. Not legal advice.