# Petition — County of Fairfax v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0556%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1078 ## Text eo ft) Zi 5 4 = regres S. 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, Ve 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 17 10 16 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. 2 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- - 3 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 4 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 5 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, I. 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 6 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- 7 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. 8 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 9 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) 10 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.") 1l 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 12 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. 13 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, 14 474) 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.) 15 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. 16 (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 17 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. 18 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, a BY: Tre le JACK L. GOULD ODIN, FELDMAN & PITTLEMAN, P.C. Box 367 10505 Jones Street Fairfax, Virginia 22030 (703) 385-7700 19 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. a, 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 (c) The setting of numerical percentage hiring goals for blacks 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. ee 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 =P 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 ag 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). a 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. ee 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 5 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- 7% 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 TF 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). a 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, ' tv ' 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). a 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. i 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. ey 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