Petition — County of Fairfax v. United States

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SEP g0 1980

IN THE - MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED LexTES

OCTOBER TERM, 1980

No.

COUNTY OF FAIRFAX, VIRGINIA, et al.,

Petitioners,

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

DAVID T. STITT

Couvaty Attorney

JACK L. GOULD

ODIN, FELDMAN & PITTLEMAN, P.C.

P. O. Box 387

10505 Jones Street

Fairfax, Virginia 22030

(703) 385-7700

QUESTION PRESENTED

Whether the Circuit Court erred in re-

versing the t7ial court's determination that

the appropriate labor pool was best deter-

mined by considering the geographic loca-

tion of applicants together with demogra-

phic characteristics of each geographic

area involved -- including the qualifica-

tions of applicants -- and adopting, in-

stead, an applicant flow analysis that com-

pared the number of applicants recruited

during a year of aggressive affirmative

action, with the number hired over an

aggregated five year period during which

such affirmative action as was engaged in

was significantly less aggressive and not

as well coordinated.

TABLE OF CONTENTS

Opinion Below Tae a. ee gee eae ae

Jurisdiction i aes ON eae cag

Question Presented. ......

Statement of the Case . oe ee

Reasons for Granting the Writ .

A ae ee ee ee ee ee

Appendix

= @. -

TABLE OF CITATIONS

Cases: Page

Detroit Police Officers’ Ass'n. v.

Youn

608 F.2d 671 (6th Cir. 1979). ....

EEOC v. Local 1A Intn‘'l. Union

of - Eng.

ni sei we an Coe Cats 200th ae 6 e's

EEOC v. United Virginia Bank/Seaboard

National

F.2d 147 (4th Cir. 1980) .. 16,

Garcia v. Rush Presbyterian Medical Ctr.

F.Supp. P FEP Cases 177, 1

(N.D. Itil. 1980) * > . © . ca ° ~ o

Hazelwood School District v. United

States

433 U.S. 299 (1977) . >, 6, 10, 11,15,

Kinsey v. First Regional Securities, Inc.

5 F.2d D.C. S re ) * . o

Statutes:

De ieee Seeeel a) «2 2 6 th ee 8 *

31 U.S.C. $1242 Mee tae ec eee ter ter ae he

42 U.S.C. §3766 MR ae at cat ag ae ae

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

No.

COUNTY OF FAIRFAX, VIRGINIA, et al.,

Petitioners,

Vv.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Petitioners County of Fairfax, Virginia,

et al., (hereinafter referred to as "the

County") respectfully pray that a Writ of

Certiorari issue to review the judgment and

opinion of the United States Court of Ap-

peals for the Fourth Circuit entered in this

proceeding on July 23, 1980.

OPINION BELOW

The opinion of the Court of Appeals ap-

pears in the Appendix hereto, as does the

memorandum opinion filed by the District

Court for the Eastern District of Virginia,

Alexandria Division.

JURISDICTION

The judgment of the Court of Appeals for

the Fourth Circuit was entered on July 23,

1980. A timely petition for rehearing en

banc was denied by the Circuit Court on

August 28, 1980, and a Motion for Stay of

Mandate pending application to this Court

for a Writ of Certiorari was denied Septem-

ber 5, 1980. This Petition for Certiorari

was filed within ninety days of the order

denying the petition for hearing en banc.

This Court's jurisdiction is invoked under

28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether the Circuit Court erred in re-

versing the trial court's determination that

the appropriate labor pool was best deter-

mined by considering the geographic loca-

tion of applicants together with demogra-

phic characteristics of each geographic

area involved -- including the qualifica-

tions of applicants -- and adopting, in-

stead, an applicant flow analysis that com-

pared the number of applicants recruited

during a year of aggressive affirmative

action, with the number hired over a an

aggregated five year period during which

such affirmative action as was engaged in

was significantly less aggressive and not

as well coordinated.

STATEMENT OF THE CASE

On December 18, 1978, the Attorney Gen-

eral filed suit on behalf of the United

States against the County of Fairfax, Vir-

ginia and certain government officials and

agencies within the County. The suit al-

leged that the County and others had vio-

lated federal law by engaging in a pat-

tern or practice of employment discrim-

ination against blacks and women. The

named defendants, which will be referred

to herein as "the County", are the County

of Fairfax, the County Executive, the mem-

bers of the Board of Supervisors of the

County, the Office of Sheriff and Jail, the

Sheriff, the Fairfax-Falls Church Community

Services Board and its Chairman and Execu-

tive Director, and the Fairfax County Park

Authority and its Chairman and Director.

The amended complaint alleged that Peti-

tioners discriminated against blacks and

women in recruitment, hiring, assignments,

and promotions. The amended complaint also

alleged use of unlawful tests and the with-

holding of information from the Department

of Justice that the County was obliged to

provide pursuant to regulations implement-

ing the non-discrimination provisions of

Revenue Sharing Act... €31.. Ga B.6... $1242)

and Crime Control Act (42 U.S.C. §3766).

Trial was before the Honorable Albert V.

Bryan, Jr., on April 9-11, 1979. The

trial court's order and memorandum opinion

were filed April 20, 1979, entering judg-

ment largely for the County. The United

States filed a notice of appeal on June

19, 1979, and the countgs@ross appealed on

July 3, 1979. On May 5, 1980, argument

was had before a panel of the Fourth Circuit

Court of Appeals, which Court issued its

decision in the matter July 23, 1980. The

Fourth Circuit vacated the judgment of the

District Court and remanded the case.

REASONS FOR GRANTING THE WRIT

The decision below is offensive to

the principles articulated in Hazel-

wood School District v. United States,

In Hazelwood this Court stated that it

is the duty of the District Court to deter-

mine whether “sufficiently reliable appli-

cant flow data are available" in a given

case. Id. at n. 21 and at 312. After a

thorough discussion of the issue in the in-

stant case, the trial court determined that

the applicant flow data offered by plaintiff

was not the most reliable available in the

circumstances of this case. Memorandum Op-

inion, pp. 8-10. The County submits that

Hazelwood makes clear this Court's view

that the best statistical comparison is be-

tween the race or sex composition of the

employer's work force and the race or sex

composition of the qualified population in

in the relevant labor market. Id. at 308.

See, also, n.17 where the Court made cer-

tain observations ". . . to highlight the

importance of the choice of the relevant

labor market area." The inference to be

drawn is that where the labor market area

can be reliably ascertained, it should be

utilized. See, also, EEOC v. Local 14 In-

tn'l Union of Op. Eng., 553 F.2d 251 (2d

Cir. 1977); Kinsey v. First Regional

Securities, Inc., 557 F.2d 830 (D.C. Cir.

1977); Detroit Police Officers’ Ass'n v.

Young, 608 F.2d 671 (6th Cir. 1979).

If.

Ample reasons existed for the trial

court to reject the application of 1978 ap-

plicant flow data to hires over the period

1974-1978. See Memorandum Opinion, pp. 8-

10. The trial Court found, for example,

that this approach would tend to penalize

the County in light of the County's agres-

sive affirmative action plan in 1978.1

However, the Court of Appeals stated that

the District Court's finding that the

1978 affirmative action plan resulted in

larger percentages of women and black

applicants in 1978 than in earlier years,

was not substantiated by the evidence.

Slip. Op. pp. 10 and 18. Significant evi-

dence that was introduced on this point

was apparently not considered by the

Fourth Circuit. For example, evidence

was introduced that approximately four

times more blacks were certified to the

police department in 1978 than in 1977

because of the 1978 affirmative action

plan. (A.396.)2/

+/ The trial court's finding that the

affirmative action plan was adopted in Oc-

tober 1977 ". . . before the County was

aware of the government's investigation",

Memorandum Opinion, p. 15, was not ques-

tioned by the Court of Appeals or, for

that matter, by the Attorney General.

2/ A. - refers to the appropriate pages in

the appendix filed below.

The 1978 AAP advanced recruitment of minor-

ities and women for Police Officer jobs by

use of a weekly special testing day. (A.

397-398.) Further, on site tests for entry

level police jobs were conducted at primar-

ily black educational institutions. (A.

399.) With the new 1978 AAP the police

department recruited through 15 black radio

stations, 7 Hispanic stations, and a number

of Korean stations (A. 399-440), and ad-

vertised more widely in newspapers’ than

before. (A. 400.) Evidence was intro-

duced to show that through a joint effort

with the International Association of Fire-

fighters (IAFF) three times the number of

black applicants for fire fighter jobs were

recruited in 1978 than had been recruited

previously. (A. 437-438.) The extent of

the minority recruitment engaged in for

firefighter applicants during 1978 was

dramatized in the testimony of the IAFF

representative:

We go to minority churches and make

presentations, colleges and univer-

sities, especially where there are

4arge numbers of minorities, man-

to-man contact on the street, pool

ss S

rooms, bars, flyers, posters. Those

are our basic recruitment techniques.

(A. 511.) And the county's then acting Per-

sonnel Director addressed the beefed-up

recruitment engaged in during 1978 (expand-

ed mailing lists, A. 521; more flexible

job requirements to attract more minorities,

A. 524; and the minority intern recruitment

efforts, A. 527-528.). Accordingly, not

only was it incorrect for the Fourth Cir-

cuit to state that no evidence was offered

to demonstrate the comparative effective-

ness of the 1978 AAP, but there was ample

record of evidence to support the trial

court's finding that because the 1978 AAP

was so much more effective than past

affirmative action efforts, use of 1978

applicant flow as a base of comparison

with hires in past years penalizes the

County for its 1978 AAP activity.3/

3/ The County would also note that the man-

ner in which the applicant flow data were

used was improper. Rather than compare 1978

applicant flow data to each of the subject

years individually, plaintiff compared these

data to an aggregation of the years 1974

through 1978. Each of the subject years

constituted a large enough sample size and

there was therefore no statistically sound

reason for this aggregation. (A. 311, 313-

314.) Further, and most importantly, the

very act of aggregation itself tends to

(Continued on next page)

IIl.

While it is of course the Attorney Gen-

eral's burden to make his prima facie case

regardless of whether the County's zip code

analysis is accepted by the Court, the County

nevertheless believes that its methodology

for determining the appropriate labor pool

is responsive to the principles articulated

in Hazelwood and is sound. This Court has

unequivocally held that the role of statis-

tics in employment discrimination cases is

correctly conceived when the employer's work

force is compared to the proper segments of

the population in the relevant labor market:

The Court of Appeals was correct

in the view that a proper compari-

son was between the racial composi-

tion of Hazelwood's teaching staff

and the racial composition of the

qualified public school teacher

population in the relevant labor

market.

2/(continued) magnify any imbalance in the

figures and therefore unfairly weights the

results against the County. Garcia v. Rush

Presbyterian Medical Ctr., F.Supp.

23 FI PEP Cases 177 177, 189 (N.D. 111. 1980) (The

court found a similar aggregation to be

error resulting in"... findings of statis-

tically significant under employment, when

under correct statistical techniques, none

will be found.")

Hazelwood School District v. United States,

433 U.S. at 308 (fn. omitted). The Hazelwood

case was in fact remanded to the lower court

for a determination of the relevant labor

market area, id., 313, something the trial

court in this case has already done. Im-

plicit in the Hazelwood opinion is the point

that proper labor market figures are not

likely to be found in an existing table or

set of figures. The Hazelwood case also

made clear that the determination of the

relevant labor market area is a question

for the trier of fact, id., 312, which may

not be overturned unless clearly erroneous.

For purposes of this petition suffice it

to say that the County's zip code analysis

essentially involved the County ascertain-

ing the geographic distribution of persons

who applied for employment with the County

in 1978 by use of their zip codes. Once

this was accomplished, the distribution of

applicants was broken down into percentages

in each area for each of the eight EEO 4

categories.4/ As described by the trial

judge in his memorandum opinion,

Then, by resort to 1970 census data,

the approximate availability of

qualified females, blacks and other

minorities in the eight categories

at issue for those geographic areas

listed above was determined. A

weighted comparison was then made

to obtain a model reflective of the

demographic composition of the labor

pool from which the defendants could

be expected to draw their employees.

Memorandum opinion at page 12.

The Appeals Court was critical of the

use of employed and experienced unemployed

figures for blacks and women which, the

Court stated, understate availability by

excluding those who never worked. As noted

in the trial court's opinion, the Attorney

General elected to present his statistical

4/ the EEO 4 categories are as follows:

officials and administrators, professionals,

technicians, protective service workers,

para-professionais, clericals, skilled-

craft workers, and service and maintenance

workers.

case using broad EEO-4 job categories,

rather than present evidence as to speci-

fic iobs. Memorandum opinion at page 5.

Use of these very broad categories required

use of similarly broad demographic data for

comparison purposes. In fact, in present-

ing its standard metropolitan statistical

area analysis (which was rejected by the

trial court and the Court of Appeals for

for unrelated reasons) the Attorney General

also relied on broad demographic data in-

cluding 1970 census data. Further, as is

apparent from defendants’ Exhibit 50 con-

sisting of the demographic work sheets used

in the zip code analysis, high school grad-

uation and lower educational achievement

were used as the qualification criteria for

unskilled entry level jobs. Therefore not

only was there no understatement of the

available labor market as ae result of

the criteria used by the County in its

zip code analysis but, moreover, use by

the County of the Washington D.C. SMSA

figures to calculate black experienced

unemployed for the Northern Virginia and

suburban Maryland counties (A. 458-459,

474) would have tended to overstate the

number of black persons available for

employment.

The Court of Appeals was also critical

because it perceived that the supervisor

of the ill demographer who was unable to

testify was unable to identify the source

for any data included in defendants' Exhi-

bit 50.5/ (Slip. Op. at n. 10.) This is

simply inaccurate and should not be permit-

ted to provide even a partial basis for

the Court of Appeals reversal of the trial

court on the zip code analysis issue.

(Data taken from published tables, A. 457;

derivation of data explained, A. 458-459;

data taken from social and economic, gen-

eral characteristics, census track tapes,

and plaintiff's exhibit 34, A. 461; deri-

vation of experienced unemployed figures,

A. 474-475; explanation of demographer's

approach, A. 479.) The County believes

5/ The demographer was unable to testify

as planned because of his and his child's

illness. (A. 451.) His supervisor testified,

however, and the demographer's worksheets had

been provided to plaintiff, were before the

court, and were received in evidence. (A.

1718-1745.)

that not only was there a full opportunity

to examine the basis for the zip code anal-

ysis but that the method provides the most

complete picture of the available labor

market, including qualifications of those

available. In the County's view it is

responsive to the invitation issued by this

Court in Hazelwood for parties to employment

discrimination suits to find a better way

to ascertain the available labor pool than

using applicant flow which does not take

qualifications into account.

One last issue deserves brief discus-

sion. The Court of Appeals appears to

have been motivated to reject the County's

Zip code analysis and accept the extra-

polated aggregated applicant flow method

presented by the Attorney General in

part because, as the Court of Appeals stat-

ed, "The County began adequate record keep-

ing practices only after the instigation

of this litigation." (Slip. Op. n. 11.)

This is a misstatment of fact. The record

Clearly shows that the County retained all

required data for the entire year of 1978.

(A. 239, 256, 540.) This suit was not filed

until December 19, 1978. (A. 3.) Moreover,

the record is uncontradicted that complete

data were kept to enable the County to moni-

tor its 1978 AAP. (A. 517.) And it is fur-

ther undisputed that the 1978 AAP was adopt-

ed by the County before the County was even

aware of the Attorney General's investiga-

tion of the County's employment practices.

(Memorandum of Op. at p. 15.) Regardless

of the réasons why the facts were not cor-

rectly stated in the Court of Appeals’

opinion, the County's employment practices

should not be measured by an erroneous

standard based even in part on the errone-

Ous assumption that adequate records were

not available for the Attorney General to

have put together a more complete and ac-

curate measurement of the available labor

pool .&/

The Fourth Circuit decision offends more

than the principles enunciated in Hazel-

wood. It also offends common sense. To

6/ In this regard petitioners see a con-

tradiction between the opinion of the Fourth

Circuit in EEOC v. United Virginia Bank/Sea-

board National, 615 F.2d 147 (4th Cir. 1

penalize an employer who has volunvarily

embarked on an aggressive, innovative, and

effective affirmative action plan by com-

paring the number of applicants attracted

during the year of aggressive affirmative

action with the number of hires during

years when no such aggressive affirmative

action plan was in effect not only disad-

vantages the employer but can only serve

as a warning to other employers that they

engage in voluntary affirmative action at

their peril. The decision makes even less

sense when it is shown that an alternative

methodology of ascertaining the correct la-

bor pool is available.

6/(continued) and the instant case. In

the United Virginia Bank case the EEOC was

critized for failing to use available data

to prove that black and female applicants

were qualified for the jobs applied for.

The same situation exists in the case at

bar, i.e., notwithstanding that qualifica-

tions data were available for 1978 applic-

ants no attempt was made by the Attorney

General to show that those who applied

were qualified, yet the Fourth Circuit ac-

cepted the Attorney General's theory of

a prima facie case this notwithstanding.

CONCLUSION

For these reasons, a Writ of Certiorari

should issue to review the judgment and opin-

ion of the Fourth Circuit.

Respectfully submitted,

COUNTY OF FAIRFAX,

VIRGINIA, et al.,

wk VSL

Counsel

DAVID T. STITT,

BY: Tre le

JACK L. GOULD

ODIN, FELDMAN & PITTLEMAN,

P.C.

Box 367

10505 Jones Street

Fairfax, Virginia 22030

(703) 385-7700

CERTIFICATE OF SERVICE

I hereby certify that on thisogj,H day

of Septem , 1980, three copies of the

Petition for a Writ of Certiorari were mail-

ed, postage prepaid, to Justin W. Williams,

United States Attorney, 117 S. Washington

Street, Alexandria, Virginia 22314 and

Dennis J. Dimsey, Esquire, Department of

Justice, Washington, (OX, 20530, Counsel

for the Respondent. I further certify

that all parties required to be _ served

A wARL

JACK L. GOULD

Counsel for Petitioners

ODIN, FELDMAN & PITTLEMAN,

P.C.

Box 367

10505 Jones Street

Fairfax, Virginia 22030

(703) 385-7700

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

V. CIVIL ACTION NO. 78-862-A

COUNTY OF FAIRFAX, VIRGINIA

et. al.,

Defendants.

ORDER

For the reasons set forth in the Memorandum Opinion this day

filed, it is ORDERED:

(1) That those defendents who are in any way involved with the

employment of women in EEO-4 job category 8, their officers,

agents, employees, successors, and all persons in active concert

with any of them are hereby permanently enjoined from engaging

in any act, pattern or practice with respect to hiring which has as

its purposes or effect discrimination on account of sex against

any applicant or potential applicant for employment within

EEO-4 job category 8.

(2) That except to the extent granted by this Order, the prayers

for relief contained in the Amended Complaint are denied.

(3) That each party shall bear its own costs.

(4) That this Order is final, but the Court retains jurisdiction of

the action for such further relief as may be appropriate to enforce

o2-«

the opportunity of employment mandated by Paragraph | of this

Order.

/s/ Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

April 20th, 1979

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

V. CIVIL ACTION NO. 78-862-A

COUNTY OF FAIRFAX, VIRGINIA,

et. al.,

Defendants.

MEMORANDUM OPINION

This Title VII action (Civil Rights Act of 1964, 42 U.S.C. §2000e

et seq., as amended by the Equal Employment Opportunity Act of

1972, 42 U.S.C. §2000e, to extend coverage to include State and

Local governments) was brought by the Attorney General on

behalf of the United States pursuant to 42 U.S.C. §2000e-4(a)

against Fairfax County, Virginia (the County) and certain State

and local governmental agencies within the County!’ alleging

+’ Named as defendants, in addition to the County, are the

County Executive; the members of the Board of Supervisors of

the County; the Sheriff of the County and his office; the Fairfax-

Fails Church Community Services Board and its chairman and

Executive Director; and the Fairfax County Park Authority and

its chairman and Director. Employment for ail of these agencies

is handied through the County or pursuant to the procedures

adopted by the County.

that the County and these agencies have engaged in a pattern and

practice of discriminating against blacks and women because of

race and sex so as to deprive them of employment opportunities.

Also asserted is the claim that the County has refused to pro-

vide information to the Department of Justice relevant to a deter-

mination whether the County is in compliance with the non-

discrimination provisions of the State and Local Fiscal Assistance

Act of 1972 (31 U.S.C. §1242) as amended in 1976 (Pub. L.

94-488, October 13, 1976), the Omnibus Crime Control and Safe

Streets Act of 1968 (42 U.S.C. §3766) as amended in 1976 (Pub.

L. 94-503, October 15, 1976), and the regulations promulgated

pursuant to these acts, respectively 31 CFR, Subpart E, §51.59

and 28 CFR Subpart D, §42.207.

While broad relief, including ‘‘make whole’’ remedies such as

back pay, adjusted seniority and fringe benefits to identifiable

victims of discrimination, is sought in the amended complaint, at

oral argument and in its post-trial brief the plaintiff requested:

(a) A general injunction against discrimination in employment

opportunities on account of race or sex;

(b) An injunction requiring record keeping and disclosure as

required by the regulations mentioned above; and

and women in certain categories of employment until the

overall percentage of employment in those categories

reaches an acceptable level.

=< wee

(d) Specific relief to identifiable victims of discrimination.

The case was tried to the Court on April 9, 10 and 11, 1979,

and the Court took the matter under advisement in order to

review the exhibits, depositions and post-trial submissions of the

parties.

Record Keeping and Disclosure of Information

Insofar as this aspect of the case is concerned the Court adopts

the proposed findings of fact contained in Paragraphs 97 through

120 of the United States’ Proposed Findings of Fact, which are

attached as Appendix A.

It is clear that prior to January 1, 1978, and subsequent to the ©

effective date of some of the regulations applicabic to the Coun-

ty, the County had failed to maintain records required by those

regulations to be preserved. It is likewise apparent now (although

there were some conflicting district court holdings at the time}

that the refusal of the County to supply the Department of

Justice with the information it requested was in error. However,

the County has shown that beginning January 1, 1978 the re-

quired records have been kept and the plaintiff, albeit partially as

a result of this suit, now has every document in the way of

records which the County has. Moreover, there is every indica-

tion that the County will continue to maintain and supply, or

have available for inspection by the appropriate agency, the

records required by the regulations. It is indeed unfortunate that

wis

records were discarded,2’ but no injunction can cause their

reproduction; and in the view of the Court no injunction is

necessary to insure further compliance with the record keeping

and disclosure requirements of the regulations.

Discrimination

The order of proof in Title VII pattern and practice cases,

under now familiar principles, is that the plaintiff has the initial

burden of proving a prima facie*/case of purposeful discrimina-

tion. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). If it does so, the burden of rebutting the case shifts to the

defendants.

The employment practices of approximately 50 departments or

agencies of the County are involved in this action. The plaintiff

has used, for comparison purposes, eight categories of

employees. The categories coincide with EEO-4 categories and

are: (i) Officials and Administrators, (2) Professionals,

(3) Technicians, (4) Protective Service, (5) Para-professionals,

2/ The Court declines, however, the plaintiff’s request that

because of the County’s activities in discarding the records, the

inference be drawn that these records would be unfavorable to

the County. There is no evidence that the actions of the County

in this regard were wilful or done in bad faith.

2» The Court adopts the traditional definition of a prima facie

case, i.e., @ state of facts, from which the most reasonable in-

Jerence to be drawn is that there was purposeful discrimination.

Office and Clerical Workers, (7) Skilled Craft Workers, and

(8) Service and Maintenance Workers.*’

The plaintiff has undertaken to establish a prima facie case

through the use of statistics which allegedly show a substantial

disparity between the make-up of the defendants’ work force and

the labor pool from which the defendants are expected to draw

their employees.

For the year 1978 the regular permanent, regular probational

and regular provisional employee work force of defendants, was

broken down into the eight categories for employees within the

agencies and departments involved in this action as follows:

Category Total White Black Male Female

l 149 142 (0.953) 4 (0.027) 129 (0.866) 20 (0.134)

2 782 735 (0.940) 25 (0.032) 598 (0.765) 184 (0.235)

3 536 498 (0.929) 24 (0.045) 442 (0.825) 94 (0.175)

4 1446 =: 11350 (0.934) 79(0.055) 1264 (0.874) 182 (0.126)

5 51 49 (0.961) 2 (0.039) 35 (0.686) 16 (0.314)

6 858 785 (0.915) 45 (0.052) 68 (0.079) 790 (0.921)

7 575 526 (0.915) 30 (0.952) 566 (0.984) 9 (0.016)

8 599 427 (0.713) 167 (0.279) 577 (0.963) 22 (0.037)

Totals 4996 4512 (0.903) 376 (0.075) 3679 (0.736) 1317 (0.264)

The plaintiff has tabulated the fluctuations in the percentages

of blacks and women in the defendants’ labor

*’ Pursuant to %709(c) of Title VII, 42 U.S.C. % 2000e-8(c), all

state and local governments who employ more than 15 empioyees

are required to file a statistical report revealing equal employment

opportunities in their jurisdictions. For the sake of uniformity,

consistency, economy and completeness, the Equal Employment

Opportunity Commission issues form EEO-4 by which reporting

agencies structure their evaluations. The EEO-4 breaks down all

__Job classifications into eight classes.

cic

force for the eight categories for the years 1974 through 1978

as set out in Appendix A of Plaintiff’s Exhibit 23. For com-

parison purposes, however, the plaintiff has concentrated on

the statistics for the year 1978.

The 4996 employees shown above are divided among the ap-

proximate 50 departments and agencies as shown in the at-

tached Appendix B.

Necessary to the decision as to whether there is a disparity is

a determination as to which segments of the defendants’ work

force will be used for comparison purposes. The government

has presented its statistical case using the eight EEO-4

categories of employees mentioned. These eight categories as

indicated, however, include employees of some fifty or more

County agencies and departments. Employees of an agency or

department do not all appear in the same category. There is a

further division of employees into job classifications. There

are 397 job classifications within all the County agencies and

departments. What the government has done in the presenta-

tion of its statistics is to single out and highlight a job

classification which itself has a minimal percentage of blacks

or females without correlating that job classification with the

other job classifications which are used to make up the

statistical data for a particular job category.

As an example, the overall percentage of female employees

, oe

in category 4 during 1978 was 12.6% and of blacks $502, The

government cites statistics, however, within the Fire and Rescue

Service (some, but not all of whose employees are included in

category 4) which show such a low number of blacks and females

now employed or hired in 1978 in certain job classifications, e.g.,

firefighter I, that it can be argued that, as to that job classifica-

tion, there is a disparity no matter which labor pool is used for

comparison. Aside from the distortion presented by using the

number of hires without knowing the number of applicants,

singling out one sub-category and using it as an argument for an

overall finding of disparity is a misleading use of the statistical]

basis upon which the overall comparisons were made.

Admittedly, a closer case for using sub-categories is presented

in the instance of category 4 where the total number of employees

(1446) may be sufficiently large numerically to note statistically

significant disparities; but the Court concludes that eac.. of the

eight categories should be looked at as a whole. To rule otherwise

is to require an employer to attempt statistical parity for each of

its job classifications. For the County this amounts, as indicated,

to a total of 397. Presumably the EEO-4 job categories were

designed with a view to providing the greatest number of

2’ The number of employees in category 4 is listed as 1446. On

the other hand the totals given for the Sheriff’s Office and Jail

(242), Police (1039), and Fire and Rescue (800) departments,

presumably within category 4, obviously exceed the listed number

Jor category 4. Obviously there are included in some or ail of

these departments persons not identifiable with category 4.

categories consistent with manageability from an employer’s

standpoint on the one hand and monitoring by the EEOC of the

make-up of the employer’s work force on the other hand. As in-

dicated, while a case can be made for separating the Police and

Fire and Rescue departments into sub-categories, that has not

been done by the EEOC, it was not done by the government at

trial by its comparisons with either the SMSA or applicant flow

data, and it was not done by the County in its preparation to

meet the government’s case at trial. And the Court is no: per-

suaded to do it by the government’s discrete selection of

Statistical data as to certain job classifications and departments

(some of which may or may not be within the same job

categories) which in isolation contain minimal or non-existent

employment of blacks and females.

Accordingly, the Court will look to the percentage of females

and blacks employed in each job category as a whole for com-

parison purposes.

Crucial to the determination whether there is the substantial

disparity of which piaintiff complains is the determination of the

proper labor pool with which to compare the defendants’ work

force. The plaintiff has approached this in two ways. First it has

used the Washington Standard Metropolitan Statistical Area

(SMSA) statistics based on 1970 census data and a 1974 Depart-

ment of Labor report. Its second approach is the use of applicant

flow statistics. The plaintiff has also pointed to the dispropor-

tionate number of females in job category 6 (Clerical) and

disproportionate number of blacks in job category 8 (Service and

Maintenance Workers), but the Court concludes that it is as

reasonable to infer that these statistics are a result of preference

as of discrimination.

SMSA

The SMSA includes the Virginia counties of Fairfax,

Arlington, Prince William and Loudoun; the Virginia cities of

Alexandria and Falls Church; the Maryland counties of Prince

Georges and Montgomery; and the District of Columbia.

For the year 1970, the Bureau of the Census, United States

Department of Commerce, reported that the labor force for the

Washington SMSA was 24.0% black and 40.4% female (PX 33,

tables 85, 92).

For the year 1974, the District of Columbia Department of

Labor reported that the labor force for the Washington SMSA

was 25.8% black and 42.0% female (PX 128).

Comparison of these percentages with the percentages of

blacks and females in the defendants’ labor force reveals a signifi-

cant disparity between the labor pool available in the SMSA and

the make-up of that work force - both overall and for the eight

specific categories here involved. The percentages in the specific

job categories are also derived from the Bureau of Census data.

The Court concludes, however, that the SMSA is not the ap-

propriate labor pool availability area for comparison. The

District of Columbia, the political subdivision having the greatest

impact on the SMSA percentages, is just not an area from which

the defendants can be expected to draw any significant number of

their employees. The distances involved, the lack of convenient

available public transportation and the fact that salaries paid by

the County and the other defendant agencies are lower than those

paid by District of Columbia employers, most notably the federal

government, are factors which dictate this conclusion. The

distance and transportation factors also prohibit the Marvland

subdivisions from being considered noteworthy sources of

employment.

Nor is the Court persuaded that the SMSA is appropriate

because the County has in the past used it in developing its hiring

goals. The evidence is convincing that the SMSA reluctantly was

used because at the time no more accurate standard was known.

Applicant Flow

The plaintiff also asserts that a statistical prima facie case may

be made by a determination of the success rates of actual ap-

plicants for jobs or job categories; that is, by a comparison of the

number hired with the number who applied to be hired, on the

theory that the labor pool from which the defendants can be ex-

pected to draw employees is best evidenced by those persons ac-

tually applying for the jobs. And the Court agrees that this is an

acceptable method, although it has certain drawbacks. First, it

does not take into account whether an applicant is qualified.

Second, it is subject to manipulation by both employer and

employee, althought there is no evidence of any manipulation in

ar ee

this case. Third, if a particular employer has a reputation for

discrimination, this could reduce the number of minority or

female applicants. Fourth, it does not take into account applicant

training and preference. Fifth, it can penalize an employer

who has an aggressive affirmative action program which results

in a large number of minority or female applicants, some of

whom are found not to be qualified. If is particularly this fifth

deficiency which the Court feels disqualifies the applicant flow

method here since, as hereafter more particularly set out, the

County did have an aggressive affirmative action program in

1978.

Unfortunately, applicant flow data is only available for the

year 1978 and thereafter.‘ The plaintiff has sought to overcome

this deficiency by applying the data for 1978 to an aggregation of

£ Defendants’ exhibits reveal that in 1978 the County’s applicant

flow by EEO-4 category was the following: for Officials and Ad-

ministrators, the black applicant flow was 12.58% and the female

applicant flow was 34.32%; for Professionals, the black appli-

cant flow was 11.26% and the female applicant flow was

55.35%; for Technicians, the black applicant flow was 12.99%

and the female applicant flow was 44.85%; for Protective Service

workers, the black applicant flow was 22.96% and the female ap-

plicant flow was 12.32%; for Para-Professionals, the black appli-

cant flow was 9.78% and the female applicant flow was 54.63%;

Jor Clericals, the biack applicant flow was 12.60% and the

female applicant flow was 86.21%; for Skilled Craft workers, the

black applicant flow was 13.52% and the female applicant flow

was 6.89%; and for Service and Maintenance workers, the black

applicant flow was 19.57% and the female applicant flow was

10.54% (DX 48, 49).

employee appointments for the years 1974 through 1978 (PX 119

and 123). By this method, using the formula adopted in

Castaneda v. Partida, 430 U.S. 482 (1977), and Hazelwood

Schoo! District v. United States, 433, U.S. 299 (1977) where the

number of employees involved was sufficiently large, and using

the exact binomial distribution where the numbers involved were

small, standard deviation disparities well above tolerable levels

were derived (except in the case of category 1 where the number

of appointments was so small that any deviation was not

statistically significant) which clearly exceeded tolerable stan-

dards. =

The aggregation of the vears 1974-1978 for appointments, but

the use of only one year’s applicant flow data for comparison

purposes, is in the Court’s view an improper method of ascertain-

ing disparity. The Court recognizes that the absence of the appli-

cant flow data for prior years is to some extent the defendants’

fault. Supra, p. 3. But there is good reason to believe that the

year 1978 was not a typical year for applicant flow data. While

there is some conflict on this point between the deposition

testimony of Dale Friesz, former County Director of Personnel,

presented by the government on the one hand, and the testimony

of Cornelius O’Kane, present Acting Director of Personnel on the

other hand, the Court is convinced that an aggressive (and suc-

cessful) affirmative action program on the part of the County,”

-’ The Country adopted the program in October, 1977 to become

effective beginning January |, 1978.

08's

resulted in many more minority and female applicanis for

employment during 1978 than in prior years. A comparison of

the successful applicants during prior years with the number of

applicants in 1978 to obtain success rates for those prior years

distorts the true picture of the disparity, and penalizes the County

for its otherwise commendable efforts.”

Accordingly the Court concludes that the applicant flow data

put forth by the plaintiff does not justify a finding that a prima

facie case has been made out.

Specific Instances of Discrimination

The plaintiff, in addition to its statistical presentation, has pro-

duced certain evidence tending to show discrimination on ac-

count of race and sex in specific instances. In none of the alleged

sex discrimination instances except those of Sutphin (denial of

opportunity to transfer from a clerical to a technical position in

the Department of Environmental Management), Dyer and Clark

(denial in 1977, as employees of Sheriff's Office, to work as desk

This distortion is precipitated by the fact that in 1978 in ail

probability more blacks and females applied for jobs in Fairfax

County than had applied in past years as a result of the affir-

mative action pian; if the number of blacks and females hired in

1978 remained roughly constant, the disparity between the

number seeking employment and those hired in 1978 would be

greater than in past years. That disparity in 1978 should not be

used to reconstruct applicant flow data in past vears in which the

number of applicants might well have been fewer than in 1978

and productive of a lower nsicigete berween numbers appiving

and those hired.

-14-

technicians and road deputies or in court security) does the Court

find discrimination; and these instances are insufficient from

which to infer a pattern and practice of discrimination on ac-

count of sex.

Except in the case of former police officer Stokes (a case in

which the Court finds he was clearly discriminated against prior

to his resignation in 1973 in his requests to be assigned as a detec-

tive, his seeking of a promotion to corporal and his use of a

police cruiser, as well as in his experience in being rehired in

1975), the Court finds no discrimination on account of race suffi-

cient to draw an inference of a pattern or practice by the County.

These specific instances, even as a supplement to the plaintiff's

statistics, show only isolated or sporadic acts, not the ‘‘standard

operating procedure’’ necessary in a pattern or practice action.

International Brotherhood of Teamsters v. United States, 431

U.S. 324, 336 (1977).

While the conclusion by the Court that no prima facie case has

been made out by the government would ordinarily end the mat-

ter, the defendants of course did not know at trial that this con-

clusion was the one the Court would reach. They accordingly put

on evidence to rebut any prima facie case.

To this end the defendants have developed another method to

determine the labor pool from which they can be expected to

draw their employees.

The defendants ascertained the geographic distribution of

~ §3<

persons who applied for employment in 1978 by use of their zip

codes. This revealed the following:

Residence of Applicants Approximate Percentages

Northern Virginia 78.02%

District of Columbia £. 60%

Suburban Maryland 7.04%

Middle Atlantic 4.56%

New York/Penn./Del. 2.58%

Remainder of U.S. 2.21%

This was further broken down into the percentages in each

area for each of the eight categories (DX 1).*/All of these reveal

that by far the greater percentage of applicants lived in Northern

Virginia. Then, by resort to 1970 census data, the approximate

availability of qualified females, blacks and other minorities in

the eight categories at issue for those geographic areas listed

above was determined. A weighted comparison was then made to

obtain a model reflective of the demographic composition of the

labor pool from which the defendants could be expected to draw

their employees.

This method also has its drawbacks, as counsel for the defen-

dants concedes. For example, it uses 1970 census data and there

may be more recent data available; it appears that some of the zip

codes used included areas of Fauquier and Rappahannock Coun-

ties; and the government argues that 1970 data reflects existing

discrimination (although there is no direct evidence of that).

* The Court adopts the defendants’ proposed findings of fac:

Nos. 16 through 23, attached as Appendix C, from which DX ] is

derived.

a”

Moreover, the use of a 1978 labor pool for comparison with

hires in earlier vears suffers from some of the same deficiencies as

the plaintiff's use of 1978 applicant flow data for earlier year

comparisons. Yet the areas from which applicants originate

would not seem to vary as much as the applicant flow, nor would

the former be affected as much by 1978 affirmative action efforts

as the latter. The Court concludes that this method is certainly

the best of the three methods presented to ascertain the available

labor pool. It accordingly adopts the defendants’ proposed

findings of fact 27 as the most accurate, although admittedly not

exact, available labor pool for comparison purposes. That pool is

as follows:

% Females in

% Blacks in Revelant

EEO-4 Job Revelant Labor

Category Labor Market Market

Officials and Administrators 4.8% $19.9%

Professionals 6.5% 35.6%

Technicians 3.8% 34.4%

Protective Service Workers 14.6% 6.9%

Para-professionals 2.6% 33.9%

Office and Clerical Workers 4.2% 77.4%,

Skilled Craft Workers 8.3% 6.4%

Service and Maintenance Workers 18.6% 42.3%

(See DX 70.)

A statistical analysis based on the foregoing shows, for the

years 1974, 1975, 1976, 1977 and 1978, that in all instances except

four, any deviation of the observed number of blacks hired is ac-

counted for by chance, i.e., within tolerable deviations. These

four instances are EEO-4 job category 4 (Protective Service

Workers) in calendar years 1976 and 1977, and EEO-<4 job

category 8 (Service and Maintenance Workers) in the calendar

Oy a

vears 1976 and 1977.

A similar statistical analysis for females for the same years

shows that in all instances except five, any deviation of the

observed number of females hired less than expected number of

females hired is accounted for by chance, i.e., within tolerable

deviations. These five instances are EEO-4 job category 8 (Service

and Maintenance Workers) for calendar years 1974, 1975, 1976,

1977 and 1978.

Thus, while the pilaintiff’s evidence is insufficent to show any

disparity in hiring, the defendants’ evidence, for the enumerated

instances only, does. Having the defendants’ evidence before it as

part of the overall submission of evidence, the Court cannot ig-

nore the adverse impacts revealed by that evidence. Accordingly,

the Court will determine whether there has been shown any

justification for the disparity in the nine (9) instances where that

has been shown to exist.

Insofar as blacks are concerned, the disparity is for the years

1976 and 1977 in job category 4 (Protective Service) and job

category 8 (Service and Maintenance). For those vears the Court

finds inadequate the attempts by the County to rebut the case

made out (by the defendants’ own evidence)!’of purposeful dis-

‘8’ The Court does not feel that the statistical evidence of the

plaintiff as to the disportionate number of biacks assigned to cer-

tain job classifications within the EEO-4 categories is sufficient,

standing aione, to warrant an inference of purposefui discrimina-

tior.. That evidence however, when coupied with the defendants’

evidence gives additional support to a finding of discrimination

Jor the years 1976 and 1977 in the.two designated job categories.

- 18 -

crimination. True, the only case made out is a statistical

one since the other evidence of individual discrimination

has not itself been shown to be more than isolated acts.

Statistics may be rebutted, but here they have not been -

at least not for those years. While there has been an_attempt

to validate the tests given those in the protective service,

the attempt can be characterized as no more than an excel-

lent first step, and the Court is persuaded by the plain-

tiff’s evidence that these tests have not yet been validated.

Insofar as females are concerned, the disparity is for

the years 1974, 1975, 1976, 1977 and 1978 in job category

eight. The County has made no convincing showing

of justification for this disparity; and the Court finds un-

rebutted the case of purposeful discrimination on account

of sex made out in this job category. The testimony that

females do not prefer the jobs in this category is just not suffi-

cient.

Remedy

In addition to the obvious need for an injunction pro-

scribing discrimination on account of sex in job category 8, the

question remains as to what additional relief should be

granted. The testimony of O’Kane, the present Acting Direc-

tor of Personnel for the County, outlining the vigorous and

~39%

successful affirmative action efforts“ on the part of the County,

is impressive and persuasive. The faci that these efforts are im-

plementations of a plan, effective January 1, 1978, but adopted

in October of 1977 before the County was aware of the govern-

ment’s investigation, makes them even more credible. The ef-

forts, beginning in 1978 with the fire fighting position of the Pro-

tective Service, although shouldered and initiated in large part by

the national union, are particularly outstanding insofar as

minorities are concerned. Despite its record in 1976 and 1977, the

County has made convincing and satisfactory progress toward

the goal of equal employment opportunity for blacks in both job

categories, and, as importantly, evinces a commitment to con-

tinue to do so. Under these circumstances, no ‘‘compelling need’”’

has been shown for the ordering of the percentage employment

goals for blacks as requested by the plaintiff. Sledge v. J.P.

Stevens & Co., Inc., 484 F. 2d 625 (4th Cir. 1978); nor, indeed,

Li’ These efforts include, among others: the setting of specific

goals, some of which have been met (30% in excess of the Coun-

ty’s goal for new minority hires in the Professional category, 73 %

in excess of the goal in Protective Service and 75% excess in Ser-

vice Maintenance); the public advertisement of job openings

especially in minority periodicals and in minority institutions (DX

5); @ requirement that when certified names are forwarded to an

agency with a vacancy, 40% of the names will be minorities if

thar many have been certified; a requirement that all certified

names must be interviewed and reasons given for rejections; the

institution of a job sharing program, mainiv for women; the in-

stitution of a job re-entry program designed for persons who

have been out of the emplovment market for anv length of time;

and the institution of a minority intern program. See aiso DX 22.

has any need been shown for a general injunction proscribing

discrimination on account of race.

The situation with regard to females in job category 8 is slightly

different. While the County’s affirmative action efforts are suffi-

cient to preclude any finding of a ‘‘compelling need’’ so as to

warrant an imposition of percentage hiring goals, nevertheless the

disparity has unjustifiably persisted through 1978 despite these ef-

forts. A general injunctive decree will, in the Court’s view, afford

effective relief; and the Court will grant it. Jurisdiction will be re-

tained to allow the Court to monitor future progress of the Coun-

ty insofar as employment of females in category 8 is concerned.

Absent a finding of a pattern and practice of discrimination in

a particular job category, no specific relief will be awarded in-

dividuals in that category. No instance of specific discrimination

has, of course, been found, either in category 8 for females or in

category 4 or 8 for blacks during the years 1976 and 1977.

/s/ Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

April 20th, 1979

APPENDIX A

97. Defendants have received funds from the Law Enforce-

ment Assistance Administration (LEAA) pursuant to the Om-

nibus Crime Control and Safe Streets Act of 1968, 42 U.S.C.

§3766 et seq. in each year from 1968 to 1979 and have funded

County programs in part with such funds (Plaintiff’s Exhibit 51;

Defendants’ Exhibit 67).

Defendants have received funds from the United States

Department of the Treasury, Office of Revenue Sharing, pur-

suant to the State and Local Fiscal Assistance Act of 1972, as

amended, 31 U.S.C. §1221 et seq. in each year from 1973 to 1979

and have funded County programs in part with such funds (Plan-

tiff’s Exhibit 50; Defendants’ Exhibit 68, 69).

99. Under the Equal Employment Opportunity Commission

Guidelines on Employee Selection Procedures, effective from

August 1, 1970 to August 25, 1978, emplovers were required by

§ 1607.4 to have available for inspection evidence showing the re-

jection rates on tests for minority and non-minority applicants

and, where technically feasible, to validate any tests having dif-

ferential rejection rates (Plaintiff's Exhibit 38 at p. 28).

100. The Equal Employment Opportunity Commission’s

Regulations, at 29 C.F.R. §1602.31, have required, since at least

1974, that anv personnel or employment record made bv a

political jurisdiction, including application forms submitted by

applicants and other records related to hiring, promotion, demo-

tion, transfers, lavoff, or termination, be preserved for a period

of two vears from the date the record was made or the personne!

action occurs, and further require that where a charge or

action is brought by the Attorney General against a political

jurisdiction under Title VII, all personnel records relevant to the

charge or action shall be preserved until its final deposition

(Plaintiff's Exhibit 36 a, b, c, and d at pp. 6-7; 29 C.F.R.

§ 1602.31).

101. The Department of the Treasury, Office of Revenue Shar-

ing, issued amended regulations in November of 1975, which

prohibit at §51.53(b) the use by any recipient of revenue sharing

funds of employee selection procedures that disqualify a

disproportionate number of minorities or women for employ-

ment and that are not related to job performance; further, section

51.53(c) requires recipients to conduct continued self- evaluation to

ascertain if their selection devices are having an adverse effect on

minorities or women (Plaintiff's Exhibit 36 at p. 14).

102. The Federal Executive Agency Guidelines on Employee

Selection Procedures adopted by the Department of Justice on

November 23, 1976, require at §4 that employers have available

for inspection records disclosing the impact of their selection pro-

cedures on the employment opportunities of persons by racial,

ethnic or sex group; that the data be examined for possible

adverse impact; and, if adverse impact is indicated, that in-

dividual components of the selection process be evaluated for

adverse impact (Plaintiff's Exhibit 37 at p. 51736).

103. The Department of Justice Law Enforcement Assistance

Administration (LEAA) issued regulations on February 16, 1977,

which, at §42.203(b)(9), incorporate by reference the

- Ill -

requirements of the Department of Justice Guidelines on

Employee Selection Procedures (Federal Executive Agency

Guidelines), requiring an employer to maintain records disclosing

the impact of its selection procedures on persons of different

racial, ethnic or sex groups (Plaintiff’s Exhibit 50 at p. 295).

104. The Equal Employment Opportunity Commission and

the Department of Justice, inter alia, adopted Uniform

Guidelines on Employee Selection Procedures effective

September 25, 1978 which require, at §15, an employer to main-

tain and have available information on the adverse impact of the

selection process for each of its jobs, and, when the total selection

process has adverse impact, require the employer to maintain in-

formation showing which components of the selection process

have adverse impact (43 F.R. 38290, August 25, 1978).

105. Prior to January 1, 1978, Fairfax County application

forms and the portion of the forms indicating the race and sex of

applicants, were routinely discarded without being analyzed

(Friesz Deposition, Plaintiff's Exhibit 53, Vol. Il, 2/6/79, at

67-71).

106. Prior to January 1, 1978, the defendants maintained no

data from which the pass/fail rates of blacks, whites and women

could be reconstructed for entry level selection devices used to

screen applicants for employment (Friesz Deposition, Plaintiff's

Exhibit 52, 1/15/79 at 137-39).

107. Until March 2, 1979 (in response to Plaintiff's interroga-

-J[V-

tories), the defendants had no data available which analyzed the

pass/fail rates of blacks, whites or women on written examina-

tions, and did not provide pass/fail rates on other of their selec-

tion devices for positions in their workforce to plaintiff (Friesz

Deposition, Plaintiff's Exhibit 52, 1/15/79 at 137-39; 143-44;

1/16/79 at 204-205; Plaintiff's Exhibit 53, Vol. III, 2/8/78 at 31;

Plaintiff's Exhibit 22).

108. The Law Enforcement Assistance Administration issued

regulations effective August 18, 1972 and again on February 16,

1977 which, at 28 C.F.R. §42.207 in 1972 and §42.207 in 1977 in-

corporate the requirement of §42.106 that fund recipients permit

Justice Department officials access to any records pertinent to

ascertaining compliance with the anti-discrimination provisions

of the Omnibus Crime Control and Safe Streets Act of 1968, as

amended & Plaintiff's Exhibit 39 and 40).

109. EEOC Form 164, State and Local Government (EEO-4)

Instruction Booklet, for 1974, 1975, 1976 and 1977 states that

employers must keep records and statistics necessary to complete

an EEO-4 report for three years and that the data underlying

these reports should be available on request to representatives of

Federal agencies (Plaintiff's Exhibit 36a, b, c, and d at 1.)

110. The Department of Treasury, Office of Revenue Sharing,

issued amended regulations in November of 1975, which require

at §51.56 that recipients of Revenue Sharing funds permit

representatives of the Department of Justice access to any infor-

mation relevant to determining whether the recipient is in com-

eV.

pliance with the discrimination prohibitions of the State and

Local Fiscal Assistance Act of 1972, as amended (Plaintiff's Ex-

hibit 38 at p. 16).

111. Section 4 of the Federal Executive Agency Guidelines on

Employee Selection Procedures adopted by the Department of

Justice on November 23, 1976, requires that employers have

available for inspection by the implementing federal agencies in-

formation disclosing the impact of its selection procedures on

persons in different race, sex or ethnic groups (Plaintiff's Exhibit

37 at p. 51736).

112. Section 4 of the Uniform Guidelines on Employee Selec-

tion Procedures (1978), adopted by, inter alia, the Equal Employ-

ment Opportunity Commission and the Department of Justice on

August 25, 1978, requires that employers have available for in-

spection by the implementing federal agencies records disclosing

the effect of their selection devices on persons in different race,

sex or ethnic groups. 43 Fed. Reg. 38297 (Friday, August 25,

1978).

113. In a letter dated November 16, 1977 from James S.

Angus, an attorney with the Department of Justice, to Lee Ruck,

Country Attorney for Fairfax County, the Justice Department re-

quested computer tapes containing race/sex information, job

class, salary, department and starting position of all county

emplovees; applicant flow data by year and race and sex for the

past § vears; hiring data by joo class, race and sex for the pas: §

years; pass,’ fail statistics for al] County screening devices, copies

Wis

of validation studies, and other information on the organization

and structure of the County government (Plaintiff’s Exhibit 41).

114. By February 7, 1978, the County had not yet provided any

of the information requested by Justice Department represen-

tatives (Plaintiff's Exhibit 42).

115. By March 7, 1978, the County had not yet provided any

substantive information to the Justice Department (Plaintiff's

Exhibit 43).

116. On March 13, 1978, F. Lee Ruck wrote James S. Angus

asserting that the Attorney General had no authority to conduct

an investigation of the County’s employment practices

(Plaintiff's Exhibit 44).

117. On March 31, 1978, The Department of Justice set out the

minimum information it was requesting and which was necessary

to make an appraisal of the County’s employment status (Plain-

tiff’s Exhibit 45).

118. On April 12, 1978, the Justice Department was informed

that the Fairfax County Board of Supervisors had declined to

provide information concerning the race and sex composition of

Police and Fire Department applicants and hires from 1975-1977,

test impact data for police and fire positions, race and sex com-

position of annua] County hires from 1975 to 1978 in EEO

categories, and the job qualifications and race and sex composi-

tion of current employees and annual hires in the County’s fifty

most populous job classifications (Plaintiff's Exhibit 47).

- VII -

119. On April 13, 1978, Fairfax County by letter informed the

Department of Justice that it would not provide certain informa-

tion requested by the United States because the County deemed it

not essential to the United States’ investigation (Plaintiff's Ex-

hibit 46).

120. The submission of information from Fairfax County to

the Department of Justice did not include requested information

on fire and police applicants for 1975 and 1976, fire and police

hires for 1975-1977, test impact data for the fire and police

departments, annual hires by EEO-4 category for 1975-1977, and

annual hires for the fifty most populous job classifications for

1975-1977 (Plaintiff Exhibit 48).

1 #

APPENDIX B

Total Emplovees

Board of Supervisors 1]

Office of the County Executive 24

Office of Assessments 193

Consumer Affairs 23

Finance 78

General Services 3

Facilities Management 143

Communications 73

Equipment Management 209

Personnel 37

Purchase and Supply 43

Public Affairs 9

County Attorney 28

Computer Center 54

Research and Statistics 72

Management and Budget 28

Project Management 5

Project Engineering 39

Waste Management 27

Line Maintenance 155

Public Works Office 4

Capital Facilities 12

Wastewater Treatment 257

Utilities Pianning 36

rT?

Maintenance and Construction

Environmental Management

Design Review

Inspection Services

Zoning Enforcernent

Mapping Division

Comprehensive Planning

Human Rights

Transportation

Property Management

Solid Waste

Recreation

Park Authority

Alcohol Safety

Office for Children

Alcoholism Treatment

Drug Abuse Ccatrol

Northwest Mental Health

Comrnunity Services Board

Fairfax House

Woodburn Mental Health

Mt. Vernon Health

Police

Office of Sheriff and Jail

Fire and Rescue

Animal Control

Total

Total Emplovees

135

rv ig

APPENDIX C

16. The geographic distribution of persons filing applications

in 1978 with Fairfax County for positions in EEO-4 job category

1, “OFFICIALS AND ADMINISTRATORS,”’ is as follows:

: Residence of Applicants Approximate Percentage

Northern Virginia 62.71%

District of Columbia 7.97%

Suburban Maryland 12.63%

Middle Atlantic 7.97%

New York/Penn./Del. 3.46%

Remainder of U.S. 5.26%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baldino, Noe, Howard

Bloch).

17. The geographic distribution of persons filing appiications

in 1978 with Fairfax County for positions in EEO-4 job category

2, ‘‘PROFESSIONALS,”’ is as follows:

Residence of Applicants Approximate Percentage

Northern Virginia 66.90%

District of Columbia 8.65%

Suburban Maryland 11.81%

Middle Atlantic 5.90%

New York/Penn./Del. 2.74%

Remainder of U.S. 4.01%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baldino, Noe. Howard

Bloch).

18. The geographic distribution of persons filing applications

in 1978 with Fairfax County for positions in EEO-4 job category

3, ‘*STECHNICIANS,”’ is as follows:

Residence of Applicants Approximate Percentage

Northern Virginia 83.34%

District of Columbia 3.16%

Suburban Maryland 6.48%

Middle Atlantic 4.40%

New York/Penn./Del. 1.43%

Remainder of U.S. 1.19%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baldino, Noe, Howard

Bloch).

19. The geographic distribution of persons filing applications

in 1978 with Fairfax County for positions in EEO-4 job category

4, “PROTECTIVE SERVICE WORKERS,” is as follows:

Residence of Applicants Approximate Percentage

Northern Virginia 57.58%

District of Columbia 12.26%

Suburban Maryland 9.58%

Middle Atlantic 5.76%

New York/Penn./Del. 11.80%

Remainder of U.S. 3.02%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baldino, Noe, Howard

Bloch).

20. The geographic distribution of persons filing appiications

- Ill -

in 1978 with Fairfax County for positions in EEO-4 job category

5, ‘‘~PARA—PROFESSIONALS,”’ is as follows:

Residence of Applicants Approximate Percentage

Northern Virginia 92.34%

District of Columbia 1.28%

Suburban Maryland 2.04%

Middle Atlantic 2.81%

New York/Penn./Del. 1.02%

Remainder of U.S. 0.51%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baldino, Noe, Howard

Bloch).

21. The geographic distribution of persons filing applications

in 1978 with Fairfax County for positions in EEO-4 job category

6, “OFFICE AND CLERICAL WORKERS,”’ is as follows:

Residence of Applicants Approximate Percentage

Northern Virginia 96.21%

District of Columbia 0.97%

Suburban Maryland 0.97%

Middle Atlantic 1.64%

New York/Penn./Del. 0.12%

Remainder of U.S. 0.09%

(Exh. 2, 24, 46, 59, 70; Lanigan, Baldinc, Noe, Howard Bloch).

22. The geograpnic distribution of persons filing applications

in 1978 with Fairfax County for positions in EEQ-¢ job category

7, “SKILLED CRAFT WORKERS,”’ is as foliows:

-IV.-

Residence of Applicants Approximate Percentage

Northern Virginia 92.86%

District of Columbia 1.72%

Suburban Maryland 1.20%

Middle Atlantic 3.87%

New York/Penn./Del. 0.17%

Remainder of U.S. 0.17%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baldino, Noe, Howard

Bloch).

23. The geographic distribution of persons filing applictions in

1978 with Fairfax County for positions in EEO-4 job category 8,

“SERVICE AND MAINTENANCE WORKERS,”’ is as

follows:

Residence of Applicants Approximate Percentage

Northern Virginia 93.24%

District of Columbia 1.65%

Suburban Maryland 1.10%

Middle Atlantic 3.77%

New York/Penn./Del. 0.08 %

Remainder of U.S. 0.16%

(Exh. 2, 24, 46, 50, 59, 70; Lanigan, Baidino, Noe, Howard

Bloch).

24. Approximately 78.02% of all persons filing job applica-

tions with the County in 1978 resided in Northern Virginia at the

time of application. A substantia) majority of all appiicants for

each EEO-4 job category resided in Northern Virginia; in each

such category there were sufficient applications to make.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 79-1599

United States of America,

Vv.

County of Fairfax, Virginia;

Members of the Board of County

Supervisors, John F. Herrity,

Warren I. Cikins, Alan H. Magazine,

Audrey Moore, Martha Pennino, James

S. Scott, John P. Shacochis, Marie B.

Travesky, Joseph Alexander;

Office of Sheriff and Jail; James

D. Swinson, Sheriff, County of

Fairfax; Fairfax-Falls Church

Community Services Board; Gene

Moore, Chairman of the Fairfax-Falls

Church Services Board; Jack M. Watson,

Executive Director of Fairfax-Falls

Church Services Board: The Fairfax

Appellant,

County Park Authority; Estelle R.

Holley, Chairman of the Board of

Fairfax County Park Authority;

Joseph P. Downs, Director of the

Fairfax County Park Authority;

J. Hamilton Lambert, Acting County

Executive of the County of Fairfax,

No. 79-1600

United States of America,

Vv.

County of Fairfax, Virginia;

The Office of Sheriff, Fairfax

County; The Fairfax-Falls Church

Community Services Board; The

Fairfax County Park Authority,

Appellees.

Appellee,

Appellants.

and

Members of the Board of

County Supervisors, John F.

Herrity, Warren U. Cikins, Alan

H. Magazine, Audrey Moore, Martha

Pennino, James S. Scott, John P.

Shacochis, Marie B. Travesky,

Joseph Alexander; James D.

Swinson, Sheriff, County of

Fairfax; Gene Moore, Chairman

of the Fairfax-Falls Church

Services Board; Jack M. Watson,

Executive Director of Fairfax-

Falls Church Services Board;

Estelle R. Holley, Chairman

of the Board of Fairfax County

Park Authority; Joseph P. Downs,

Director of the Fairfax County Park

Authority; J. Hamilton Lambert,

Acting County Executive of the County.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. Albert V. Bryan, Jr.,

District Judge.

Argued May 5, 1980 Decided July 23, 1980

Before WINTER, MURNAGHAN, and SPROUSE, Circuit

Judges.

David L. Rose (Justine W. Williams, United States Attorney;

Drew S. Days, III, Assistant Attorney General; Jessica Dunsay

Silver, Dennis J. Dimsey, Joan F. Hartman, Dept. of Justice

on brief) for Appellant; Jack L. Gould, Assistant County At-

torney (David T. Stitt, Acting County Attorney on brief) for

Appellees; (Robert E. Williams, Douglas S. McDowell,

Lorence L. Kessler, McGuiness & Williams on brief) as

Amicus Curiae the Equal Employment Advisory Council.

WINTER, Circuit Judge:

The United States sued Fairfax County, Virginia, and cer-

tain governmental officials and agencies within the County’

for alleged violations of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seq., the State and Local Fiscal

Assistance Act of 1972, 31 U.S.C. § 1242 (Revenue Sharing

Act), and the Omnibus Crime Control and Safe Streets Act of

1968, 42 U.S.C. § 3766 (Crime Controi Aci).

4’ Collectively, defendants will be sometimes referred to as the

“‘County.”’

2” Because Titie VI] standards aiso govern Giscrimination

claims raiseG under the Revenue Sharing Aci anc the Crime

Control Act, this opinion will discuss only Titie VII. See

United States v. New York, 82 F.R.D. 2, 4-5 (N.D. N.Y.

1978); United States 1. Baitimore County, 17 EPD §8509 (D.

Mea. 1978).

It alleged and produced evidence at trial that the County pursued

a pattern and practice of employment discrimination against

blacks and women in recruitment, hiring, assignments, and pro-

motions. It also alleged and produced evidence at trial that the

County used unvalidated testing devices with a disparate impact

on blacks and women, that blacks and women were employed

disproportionately in lower-paying and less desirable positions

and that the County had refused to supply the Department of

Justice with data necessary to a determination of whether the

County was in compliance with the non-discrimination provi-

sions of the Revenue Sharing Act, the Crime Control Act, and

the regulations promulgated thereunder.’

After trial, the district court entered judgment largely for the

County. Inexplicably, it failed to discuss and apparently failed to

consider the government’s disparate impact case. With respect to

the government’s disparate treatment case, it found that the

County .had discriminated against blacks in only two job

categories and that it had discriminated against women in only

one job category. Because of the County’s affirmative action

program, the district court found it unnecessary to grant relief for

the racial discrimination that it found, but it granted an injunc-

tion against the sex discrimination in the one job category.

»” 31 C.F.R. § 4, Department of Justice Employee Selection

Guidelines; 28 C.F.R. § 42.106.

ar ee

Because of the County’s affirmative action program, the district

court found it unnecessary to grant relief for the racial

discrimination that it found, but it granted an injunction against

the sex discrimination in the one job category. Finally, the district

court declined to order the County to comply with record keeping

regulations because it thought that the County would comply

voluntarily. Both the government and the defendants appeal. In

most part, we vacate the judgment and remand the case for fur-

ther proceedings.

As our introductory paragraphs indicate, this is both a

disparate treatment and a disparate impact case. See Teamsters v.

United States, 431 U.S. 324, 335 (1977). This will necessitate

separate discussion of the applicable law and separate discussion

of some of the facts. Pertinent to both aspects of the case are the

following facts:

A. General

The County has a work force of neaily 5,000 employees, divid-

ed into fifty departments which can be grouped into eight

categories: (1) officials and administrators, (2) professionals, (3)

technicians, (4) protective service workers, (5) para-professionals,

(6) office and clerical workers, (7) skilled craft workers. and (8)

service and maintenance workers. Within these categories, the

County had 397 job classifications in which there were no or vir-

tually no blacks or women; but, taking the categories as a whole,

1 os

the County had in the year 1978 the following empiovees

classified by race and sex: .

Category Total White Black Male Female

1 Officials 149 142 (95.3%) 4( 2.7%) 129 (86.6%) 20 (13.4%)

2. Prof. 782 735 (94.0%) 25 ( 3.2%) 598 (76.5%) 184 (23.5%)

3. Tech. 536 498 (92.9%) 24( 4.5%) 442 (82.5%) 94(17.5%)

4. Prot. Serv. 1446 1350 (93.4%) 79( 5.5%) 1264 (87.4%) 182 (12.6%)

5. Para-prof. $1 49 (96.1%) 2 3.9%) 35 (68.6%) 16 (31.4%)

6. Clerical 858 785 (91.5%) 45 ( 5.2%) 68 ( 7.9%) 790 (92.1%)

7. Sk. Craft $75 $26 (91.5%) 30( 5.2%) 566 (98.4%) 9( 1.6%)

8. Serv. & Maint. $99 427 (71.3%) 167 (27.9%) 577 (96.3%) 22( 3.7%)

Totals 4996 4512 (90.3%) 376( 7.5%) 3679 (73.6%) 1317 (26.4%)

B. Disparate Treatment Case

The United States produced two sets of statistical data to

demonstrate that the percentages of blacks and women in the

County’s work force were significantly disproportionate to the

percentages of blacks and women in the available labor

market. Thereby, the United States sought to prove a prima

facie case of disparate treatment of blacks and women. Proof

of a prima facie case would, of course, cast the burden on the

County to rebut the inference that it had practiced purposeful

racial and sexual discrimination.

First, the United States offered statistical data for the

Washington, D.C. Standard Metropolitan Statistical Area

(SMSA) based on the 1970 census and a 1974 Department of

Labor Report. Significant disparities were proved. Defen-

dants’ work force in 1978 was 7.5% black while the SMSA

pool, measured by the 1970 census, was 24% biack. As wel.

defendants’ work force was 26.4% female while the SMSA

labor pool was 40.4% female.

Second, the government presented data showing the race

and sex of persons who had applied for employment with the

County (the ‘‘applicant flow data’’). This evidence was follow-

ed by expert testimony that statistically significant disparities

existed in a wide range of job categories between the percen-

tages of blacks and women in the 1978 applicant pool and the

percentages of blacks and women hired by the County from

1974 through 1978.*’Specifically, the expert found disparities

with respect to blacks in six of the eight job categories and with

respect to women in five of the eight categories.

The United States attempted to prove disparate treatment of

blacks and women through two other methods. The govern-

ment showed that blacks and women were clustered in the

lower-paying and less desirable job classifications. The service

and maintenance category accounted for 44.41 % of 1978 black

incumbent employees, but only 9.45% of white incumbents.

Of blacks hired from 1974 through 1978, 31.7% were assigned

to the job classifications of public service workers or custodian

in contrast to 4.9% of whites. Over 59% of defendants* female

employees in 1978 were employed in the office and clerical

worker category, but only 1.85% of male employees were

similarly assigned.

*’ In violation of the record keeping regulations of the

Revenue Sharing Act anc the Crime Contro! Act, defendants

nad desiroved pre-197& appiications for empiovment. As a

consequence, the government’s expert, assuming that tne rate

remained constant, used the 1978 rate of appiications jrom

blacks and women and applied it to previous vears.

Additionally, the government presented evidence of isolated in-

stances of actual race and sex discrimination in the police depart-

ment, the Department of Environmental Management, and the

Sheriff’s Office.

The County’s defense to the government’s disparate treatment

case consisted of its own statistical analysis and proof of its 1978

affirmative action plan. It prepared an analysis of the zip codes

of 1978 applicants and determined the percentage of applicants

from six geographical areas: Northern Virginia, the District of

Columbia, suburban Maryland, the Middle Atlantic States, New

York-Pennsylvania-Delaware, and the remainder of the United

States. Figures from the 1970 census were used to determine the

number of employed and experienced unemployed persons by

race and sex from each of the six geographic regions, and based

on these figures the County derived composite ‘‘availability”’

statistics for blacks and women in each of the job categories for

these geograpnic areas. The evidence of actual hires in 1974-78

when compared to the composite availabie labor market showed

significant disparities with respect to blacks for 1976 and 1977 in

the protective service workers category and the service and

maintenance workers category and with respect to females for

1974-78 in the service and maintenance workers category.

The County also presented evidence concerning its 1978 affir-

mative action plan. It introduced the pian and developed throuch

testimony its efforts to increase the mailing list from 250 tc 300

aims

organizations, its ‘‘balanced certification’’ plan to certify minori-

ty applicants meeting minimum qualifications for interviews by

the hiring agency, its policy of counting volunteer experience as

part of an applicant’s qualifications; and its hiring goals. Because

it had destroyed pre-1978 applications, the County was unable to

offer any evidence of the effectiveness of its 1978 affirmative ac-

tion plan as compared to its pre-1978 recruitment efforts.

In deciding the government’s disparate treatment case, the

district court rejected both the government’s SMSA data and its

applicant flow data as measures of the County’s labor pool. The

district court decided that the government’s SMSA statistics were

not controlling because of the physical and economic distance

between the County and the District of Columbia. The district

court also found fatal flaws in the government’s applicant flow

data, based upon the district court’s conclusion that the County’s

affirmative action plan increased the percentages of women and

black applicants in 1978. In addition, the district court declined

to draw any inference of discrimination from the dispropor-

tionate number of females in the clerical category and the

disproportionate number of blacks in the service and

maintenance category. It concluded that “‘it is as reasonable to

infer that these statistics are a result of preference as of

discrimination.”’

The district court chose to judge the County’s employment

record agains: the County’s zip code anaivsis of its labor marke:.

Even though that analysis reveaiec that the County hac hirec

aes

smaller percentages of blacks in two job categories’ than were

present in the labor market, the district court concluded, based

on the County’s affirmative action program, that equitable relief

was unnecessary to correct racial discrimination. Because of a

finding of discrimination against women in one job category,*’

however, the district court did enjoin future sex discrimination.

C. Disparate Impact Case

In its disparate impact case, the United States presented

evidence establishing that the Country had used six employment

tests, which were prerequisites for job classifications constituting

approximately one-third of the County’s work force, that

operated to exclude blacks from employment and promotion.

¥ The zip code analvsis uncovered discrimination against blacks

during 1976 and 1977 in the protective services and the service

and maintenance categories.

*£ Sex discrimination was found in the service and maintenance

category for the years 1974-78.

a ee

Its evidence is summarized in the following tabie:

White Black

Whites Whites Blacks Biacks Pass Pass

Passing Failing Passing Failing Rate Rate

Clerical (1978) 422 122 35 48 77.6% 43.8%

Clerical Specialist (1978) 183 13 4 “ 92.2% 30.0%

Firefighter | (1978-1979) 264 61 85 $0 81.2% 63.0%

Firefighter I] (1978) 165 45 0 8 78.6% 0.0%

Police Officer (1974-1975)” 300 24 $25 425 92.6% 55.3%

Police Officer (1978-1979) 476 $$ 3) 27 89.6% 53.4%

Police Corporal (1977) 184 162 ] 13 $3.2% 7.1%

Coupled with these statistics, the government offered the

testimony of an expert that the disparity in pass rates of blacks

and whites was statistically significant.

The County offered no evidence that any of these tests had

been fully validated to establish their relationshio to the skills

needed in the particular jobs. It did offer evidence that valida-

tion studies were under way for the entry level tests for

firefighters and policemen. It sought through the testimony of

its own employees to show that the firefighter I] test and the

test for clerical and clerical specialists adequately examined

skills necessary for tasks performed on the job. Additionally,

the County showed that the police corporal tests had been

validated in another state. Finally, the County relied on its

evidence in the disparate treatment aspect of the case, together

2’ The figures for the 1974-1975 police officer examination are

for Fairfax County, Arlington County, and the City of Alex-

ancric. The same examination was given for each jurisdiction.

Pa;

with a government exhibit which was not offered in evidence,?’to

prove that blacks were hired in proportions which indicated no

disparate impact, contending that any disparate impact in the

testing process was rectified by the lack of discrimination in the

end result.

In entering its final decree, the district court did not discuss the

disparate impact aspect of the case except to state that the valida-

tion studies for prospective service entry-level tests were no more

than ‘‘an excellent first step’’, but that ‘‘the tests have not yet

been validated.’’

A. The Disparate Treatment Case

The government undertook to prove its disparate treatment

case largely through the use of statistical evidence showing a

substantial racial and sexual imbalance in the County’s work

force. Proof of such an imbalance ‘‘is often a telltale sign of pur-

poseful discrimination; absent explanation, it is ordinarily to be

expected that nondiscriminatory hiring practices will in time

result in a work force more or less representative of the racial and

ethnic composition of the population in the community from

which employees are hired.’’

+’ This exhibit contained statistics purporting to represent the

number of black applicants. The statistics were furnished to the

government by the county’s personnel office. The government

decidec not to introduce the exhibir into evidence, aliegediy

because the statistics were unreiliahie.

o14-

Teamsters v. United States, 43] U.S. at 340, n.20. Of course,

proof of a discriminatory motive is a necessary element of a

disparate treatment case, but statistics can establish a prima facie

case, even without a showing of specific instances of overt

discrimination. See, ¢.g., Hazelwood School District v. United

States, 433 U.S. 299, 307-08 (1977); Barnett v. W. T. Grant Co.,

518 F.2d 543, 549 (4 Cir. 1975).

The government’s SMSA statistical evidence showed wide

disparities between the relatively small percentages of blacks and

women in the County’s work force and the higher percentages of

blacks and women in the County’s labor market. As well, the

government’s applicant flow evidence demonstrated statistically

significant disparities between the County’s labor force and its

applicant pool for blacks in six job categories and for women in

five job categories. By contrast, the County’s statistics showed

significant disparities in the hiring of blacks in only two job

categories and of women in only one job category. Thus, the

degree of disparity between the percentages of blacks and women

in the County’s work force and in its labor market hinges on the

choice of a relevant jabor pool. The critical question for decision,

then, is: Which is the relevant labor pool, the government’s

SMSA data. the government’s applicant flow data, or the Coun-

ty’s composite iabor market derived from the study of zip codes?

-15-

It is to this question that we first direct our attention. While we

think that the record supports the district court’s rejection of the

SMSA statistics, we do not think that government’s applicant

pool data should have been rejected. Concomitantly, we find the

evidence of deficiencies in the County’s zip code analysis suffi-

ciently compelling so that we do not think that the use of this

measure of the applicable labor pool should be sustained.

The greatest disparities between the hirings of women and

bi<zks and the County’s labor market appeared when the SMSA

Statistics were used as the relevant labor pool. The district court

rejected the SMSA as a measure of the County’s labor market,

and although we recognize that there was conflicting evidence, we

do not consider the district court’s decision to be in error. As the

government emphasizes, the County itself used the SMSA as the

relevant labor market in three of its affirmative action plans and

in a memorandum on minority police hiring. In addition, the

County advertised job vacancies in metropolitan media, sent job

announcements to organization throughout the SMSA, and im-

posed no residence requirement for any job except county ex-

ecutive. But there was evidence that the distance between the

Country and the District of Columbia, where there is a substantia!

black population which would raise the percentage of biacks in

the SMSA statistics, was so great that without adequate mass

transportation, which does not exist, the two labor markets are

separate anc distinc:. Another factor contributing to the senare-

tion and inhibiting a flow of applicants from the Diszrict of Col-

umbia is the fact that wage rates in the County are lower than in

the District.

On baijance, we perceive no error in the district court's rejection

of the SMSA statistics.

The district court also rejected the government’s second

method of establishing the County’s labor market, the applicant

flow data. At the outset, we note that applicant data are normally

highly relevant evidence of an employer’s labor market. See

Hazelwood School! District v. United States, 433 U.S. at 308

n.13. Those who apply constitute the pool from which emplovees

are selected.”

In this case, the applicant data from which the government

prepared its statistics were available only for the year 1978

because the County had destroyed all of the applications for

1974-77. As a consequence, the government extrapolated the

figures for 1974-77 from the 1978 applicant pool by assuming

that the applicant pool for 1974-77 contained the same propor-

tions of blacks and women as did the 1978 applicant pool. The

district court found two related defects in the government’s ex-

trapolated applicant flow data; we find, however, that neither of

the supposed defects was serious enough to justify the district

court’s decision to reject the applicant flow data, here the most

salient proof of the County’s labor market.

” Of course, if the victims of discrimination have been

discouraged from applyi:.g, the applicant pool data may not ade-

Quately measure the percentages of women and biacé:s actual):

presen: in tne iador marxe:. See Dotnara \. Rewiinsor., 432 LS.

52., 330 (19771. No such cnalienge has been made to tne appii-

cani pooi data in this case.

First, the district court found the government’s figures suspect

because the court thought that the County’s recent attempts at

affirmative action probably resulted in larger percemiages of

women and black applicants in 1978 than in earlier vears. We

think that the district court’s assumption is not substantiated by

the evidence. The 1977-78 affirmative action plan was not the

County’s first; the County had had affirmative action programs

since 1972. Some of the features of the County’s 1977-78 pro-

gram were basically continuations of past programs, such as

publicity and mailings to minority organizations. Moreover,

some other affirmative action efforts had been discontinued by

1978, and some of the new features of the 1977-78 program, e.g.,

giving credit for volunteer work, would have little effect on

recruitment. On balance, then, we see no basis for concluding

that the 1978 applicant figures were significantly differen: from

those of prior years.

We are likewise not persuaded by the other reason assigned by

the district court for rejecting the government’s applicant flow

data—that the 1978 data would penalize defendants because the

County’s affirmative action programs would more likely attract a

larger number of unqualified applicants than had appiied in

earlier vears. We cannot assume that dDiacks and women attracted

by an affirmative action plan are more likely to be unqualified

than white maies who apply.

: 7.

If such is the case, this possible defec: in the statistics is a fac-

tual matter to be proved by defendants in rebuttal of the govern-

ment’s prima facie case; it is not a factor which determines if a

prima facie case has been proved. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-03 (1973). Neither of these two suppos-

ed flaws, then, justify the district court’s decision to ignore the

applicant flow data.

The district court’s decision to reject the government’s appli-

cant flow data is the obverse of its decision that the County’s zip

code analysis provided the most reliable measure of the County’s

labor market. Unlike the district court, we perceive deficiencies in

the County’s zip code statistics which distort them sufficiently, in

our view, that they cannot supplant the applicant flow data as the

appropriate measure of the County’s labor pool.

The County’s zip code analysis suffered from two fundamental

defects. First, the zip code percentages which the Country derived

from its applications were applied to 1970 census data. That data

is suspect and probabiv an inaccurate reflection of actual condi-

tions in 1974-78. The 1970 census data recorded only the numbers

of blacks and women in particular job categories during a period

when the effects of racial and sexual discrimination in employ-

ment were undoubtedly more severe than in subseauetit vears.

See Smith v. Union Oil Co., 17 FEP Cases 960, 967, (N.D. Cal.

1977). Second, the Counry used only the population figures for

the emploved and the expenenced unempioved biacks and

women in the vanous jop categones in 1970. Many of the Coun-

ty’s employment opportuniues, e.g., entry-level poiice anc fire,

-19-

clerical, and maintenance jobs, surely require no prior ex-

perience, even if they do require an entrance examination. See

Hazelwood School] District v. United States, 433 U.S. at 308

n.13; Teamsters v. United States, 431 U.S. at 337 & n.17. Thus,

the use of the County’s figures undoubtedly understated the

available labor market for these jobs by including only blacks and

women who held or who had held similar positions.”

In summary we think that, on the present record, the govern-

ment’s applicant flow data was the appropriate measure of the

available labor market for the period 1974-78. When resort is had

to the applicant flow data, it is obvious that the government

proved a more extensive prima facie case than the district court

recognized. We do not undertake to define the exact contours of

the case, however. That is more properly the function of the

district court. And, the district court must also weigh what

evidence the County may adduce in rebuttal to explain significant

Statistica] disparities in the employment of blacks and women and

1” Jn addition, the County’s study employed zip codes which in-

ciuded areas of Gisiant Fauquier and Rappahannock Counties.

It ws signivicant aiso that, oecause oF iliness in his family, the

preparer of the zip code anaivsis did nor testify. His supervisor,

who sponsored the exhibits, acknowiedged numerous weaknesses

in the data. The availability figures which were developed were

given in terms of the categories of employment stated in the text,

Du? Inev were derived from census figures which do nol empiov

inose calevories. Tne supe sor COUIC NOI exniain oF Justits AOW

In€ Gale was transiaiec. inae2c. sne Cou.d no; igentisv the source

Jor anv aaia inciuded in ine exnibit.

to negative the inference of discriminatory intent.

While we express no view on the extend of the violation of Ti-

tle VII which the district court may find on remand, we are con-

strained to comment on the limited relief the district court

granted the victims it identified and its further refusal to grant a

mandatory injunction to insure compliance with the record keep-

ing requirements of law. In both respects, we think that the

district court was in error.

To the extent that the district court finds racial discrimination,

it is under a duty to render a decree which will both eliminate past

discrimination and bar discrimination in the future. Albemarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1975). It is commen-

dable that the County is continuing its affirmative action pro-

grams, although there was some evidence that the goals may soon

be reduced. But, in any event, as we said in Barnette v. W. T.

Grant Co., 518 F.2d at 550, ‘‘a court cannot abdicate to defen-

dants’ good faith its duty of insuring removal of al) vestiges of

discrimination.””

Thus we think, that the district court should have granted in-

junctive relief against future discrimination. In granting inijunc-

tive reliei, it snouid both have required compliance with the

record keeping and disclosure requirements of existing law. See

EEOC v. Rogers Brothers, Inc., 470 F.2d 965 (5 Cir. 1972),4and

imposed requirements for periodic reports to enable it to monitor

compliance with its decree. Finally, if proof is offered of iden-

tifiable economic injury to blacks or women, or both, who have

suffered from the County’s discriminatory practices, it should

grant back pay or retroactive seniority or both. Teamsters v.

United States, 431 U.S. at 361-62; Albemarle Paper Co. v.

Moody, 422 U.S. at 421; Hill v. Western Electric Co., 596 F.2d

99, 104 (4 Cir. 1979), cert. denied, US. (1979);

Sledge v. J. P. Stevens & Co., 585 F.2d 625, 637 (4 Cir. 1978);

Robinson v. Lorillard Corp., 444 F.2d 791, 803-04 (4 Cir. 1971).

At this time and on this record, we do not pass on the govern-

ment’s contention that the district court impose hiring goals and

timetables. We only call attention to Sledge v. J. P. Stevens &

1” Normally, a district court has discretion to deny injunctive

relief to require record keeping, when the court is convinced that

_ the transgressor will keep adequate records in the future. In this

case, however, we find that the district court exceeded its discre-

tion by refusing to issue a record keeping injunction. The County

had a long history of inadequately maintaining emplovmeni

records; it had stored applicant records in a shoe box and routine-

lv aesiroved them. This iax attitude toward compliance with the

recorc Keeping reguiazions made exac: proofs in this case more

difficult, because the Counts aaia for ]974-77 were noi avatiabie.

The County began adequate record keeping practices oni\ after

the instigation of this litigation. On these facts, the district court

should have taken steps to insure that the County wouid fulfill its

recorc Keeping obligations.

e J) e

Co., supra, where we have said that hiring quotas shouid be im-

posed only in the most extraordinary circumstances and where

there is a compelling need.

B. The Disparate Impact Case

In order to prevail in a disparate impact case, a plaintiff need

not show that a defendant acted with a discriminatory purpose.

He need only show that a facially neutral employment practice

has 4 “gguminatory impact on members of a protected group. If

that showing is made, use of the procedure is unlawful unless it is

shown to be valid or otherwise required by business need. See,

e.g., Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); Griggs v.

Duke Power Co., 40] U.S. 424, 430-32 (1971).

In the instant case we think that the government proved a

prima facie case of disparate treatment of biacks in the County’s

use of hiring and promotion tests having a severe adverse impact

on blacks in job categories which included 30% of the work

force. Because defendants failed to establish, with possibly one

exception, that the tests were properly validated to measure jot

performance, the use of these tests would appear to be in viola-

tion of Title VII. Washington v. Davis. 426 U.S. 229, 247 n.13

(15761: Albemarie Paper Co. v. Moody, 422 U.S. 40% (1975):

Griggs v. Duke Power Co., 40} U.S. 422 (197}).

We deciine, however, the Government's invitation to reach a

fina] decision on this aspect of the case. There are many unresolv-

ed factual aspects of the disparate impact case, most particularly

with regard to the proof offered by the County to rebut the

government’s showing of adverse impact. The district court has

made no factual findings. We recognize that the County, except

possibly with regard to the test for police corporal, offered no

evidence of professional validation of the tests it empioys. 2’

Usually the starting point in proof of validity is evidence of a

thorough job analysis. See Vulcan Society v. Civil Service Com-

mission, 360 F. Supp. 1265, 1274 (S.D. N.Y.), aff'd., 490 F.2d

387 (2 Cir. 1973). And this proof is followed by demonstration

that the test accurately and fairly measures the knowledge, skills,

and abilities needed for successful performance of the job. See

United States v. City of Chicago, 573 F.2d 416 (7 Cir. 1978):

Kirkland v. New York State Department of Correctional Ser-

vices, 374 F. Supp. 1361 F.2d (S.D. N.Y. 1973), aff'd in relevant

part, 520 F.2d 420 (2 Cir. 1975), cert. denied, 429 U.S. 823

(1976); Vuicar, Society v. Civil Service Commission, supra.

3’ The defendants produced @ validation studv conducted in

Phd ede ' :

Norse Carine for in Doce cOPPGrS: 1eSz.

* P

Nonetheless, with these legal criteria as a guide, we think that the

initial exploration of the factual mazes of the disparate impact

case should be undertaken by the district court and not by us.

Based upon the foregoing, we vacate the judgmeni of the

district court and remand the case for further proceedings consis-

tent with what we have stated.

VACATED AND REMANDED.

3’ Consequently, we do not address the County’s ‘‘bottom line’

defense, by which it contends that sufficient numbers of blacks

were hired ever if the empiovment: tests, which aliegediv con-

stitute oniv @ part of the Airing process, were discriminaion. We

pass no judgment on the theoretica: validity of this defense anc

leave it in the first instance to the district court. The district court

should examine the factual aspects of the Countv’s defense ciose-

ly, in light of the government’s insistence that the figures on

whion if is asec are suspec: See note & suorc

_ ee

~ &'o)

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