Respondents Brief — Firefighters v. Stotts
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Nos, 82-206, 82-229
IN THE
Supreme Court of the United oS
»
Ocroper Term. 1983
Fin mes Locan Uxtoxn No. 1784
Petitioner,
4
Car. W. Svrerrs
Memeuis Fire DerakTMENT, et al
Petitioners,
|
( \\ STO > T !
ON WRITS OF CEKTIORARI TO THE UNITED STATES
COURT OF APPEALS POR THE SIXTH CIRCUTI
BRIEF FOR RESPONDENTS
Tuomas M. Dante.
Rienarp LD. Frevps*
Cox & FIELps
7007 Adams Avenue
Memphis, Tennessee
901, 525-8601
JACK GREENBERG
(). PETER SHERWOOD
(type E. Murry
Roxatp L. Exuus
Exc ScUNAPPER
Suite 2OS0
10 Colhumbus Circle
New York. New York 10019
212) «386-8397
Barry L. GoLpsTEer
Suite 940
S06 15th Street, NW.
Washington, D.C. 20005
(202) 6358-3278
Atlorneys for Respondents
*Counsel of Reeord
a
QUESTIONS PRESENTED*
l. Is this appeal moot?
2. Did the district court abuse
its discretion in issuing a preliminary
injunction limiting the laying off of
black employees?
3. Is the consent decree, as
construed by the courts below, valid?
*The parties to this appeal are set forth
in the Brief on the Merits for Petitioner
Pirefighters Local Union No. 1784 (here-
inafter “Union Brief").
—
TABLE OF CONTENTS
Page
Questions Presented ...... o+s60798 abenh i
Table Of COMtentS ..... cee eee necenceccees ii
Table Of AuthoritieS ...... cece eeeeccees iii
Stetement of the Case ....eseeceevees eevee 1
Summary of Argument ........ ceccece TrTTiT 16
ATQGuUMENt ...ceeeecccees TEerTeririr cecccces 24
I. This Appeal Is Moot .......+.. 24
II. The District Court Did
Not Abuse Its Discretion
in Issuing a Preliminary
Injunction Limiting the
Laying Off of Black
EmployeeS ....ccececeeccccees 45
III. The 1980 Consent Decree,
As Construed by the Courts
Below, Is Valid eseeenee2ertreeneeee 78
Conclusion eseeeeeneeneeneeeneeeeeneeneeeeneeeeee 105
Appendix A: Exhibit A to the 1980
Consent DECTES .nccceceseeeesessseeece 11
Appendix B: Blacks Hired Pursuant to
the 1980 Consent Decree ....cseeeeees 1b
Appendix C: Blacks Promoted Pursuant
to the 1980 Consent Decree .......... le
Appendix D: Least Senior Privates,
June 1981 eeeeeeeeeeeeeeeeeeeeeeeeeeee 1d
APPENdix E wnccescccsccecescesseseseseses le
4
- ii- ¥
*
sitia sa S., a
TABLE OF AUTHORITIES
Page
Cases
Alabama v. United States, 279 U.S. 229
(1929) *eeneeeeeeneenertee eeeeeeeene#ee#e#eee#e#feeses#* 49
Alexander v. Gardner-Denver Co., 415
U.S. 36 (1974) ese erineeneeneteeneeneteeeeeee#e#eeeeeses’ 91
Bratton v. City of Detroit, No. 80-1837
(6th Cir.) e*eeneenteneenseneeneneeneeeneneneeeee 43
Brown v. Chote, 411 U.S. 452 (1973) ... 49
Brown v. Neeb, 644 F.2d 551 (6th Cir.
1981) eseeeeneeseeneeeeeeeeneneeneneneneneeneneeeee 52,66
Carroll v. President and Commissioners
of Princess Anne, 393 U.S. 175
(1968) eeeeeneenseteneeeeeneneneneeneneneneeneeneeees 37,41
Carson v. American Brands, Inc., 450
u.S. 79 (1981) e*eeeensteseeseeseesenseeenseesense#sees 90,97
Chrysler Corporation v. United States,
316 U.S. 556 (1942) eoeeeeeveeeeee eee eee 68,69
Doran v. Salem Inn, Inc., 422 U.S. 922
(1975) eeeneeesevnsr3eevxveeeere#rfse#enstseegee@ee#*eesee#ee#esesfer#ese#e#8e#ee 19,49
Dunn v. Blumstein, 405 U.S. 330 (1972) .. 40
EEOC v. American Telephone & Telegraph
Co., 556 F.2d 167 (3d Cir. 1977), cert.
denied, 438 U.S 915 (1978) wcceeseeeee 87,95
Pord Motor Co. v. EEOC, U.S. , 73
L.EBd.2d 721 (1982) ...ccceceeee 24,90,91,100
Franks v. Bowman Transportation Co., 424
U.S. 747 (1976) @eeneeeeoeeeeeeeeeeeeene8 86
- iii -
Cases Page
Fulenwider v. Firefighters Ass'n. Local
U. 1784, 649 S.W.2d 268 (Tenn. Sup.
ct. 1982) e*eeeeeneeeseeneeneeneeeneeneeeneeneeee 104
Gannett Co. v. DePasquale, 443 U.S. 368
(1979) e*eeeseeeeeneeenrteeeneeeneeneeeneeneeeeeee 18,40
Gautreaux v. Pierce, 535 F. Supp. 423
(N.D. Ill. 1982) e*eeeeneentreeeneeneeneneeeees 68
Gerstein v. Pugh, 420 U.S. 103 (1975) .. 40
Hughes v. United States, 342 U.S. 353
(1952) e*eeeseeoeeeeeeeeeeeeneeeeeeeeeeeeee 65
International Brotherhood of Teamsters
v. United States, 431 U.S. 324
(1977) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee
Lane v. Williams, 455 U.S. 624 (1982) .. 34
Minnick v. Department of Corrections,
No. 79-1213 eeeeeeeeneeeeeeeeeeeeeeeeee 101
Moore v. Ogilvie, 394 U.S. 814 (1969) .. 40
Murphy v. Hunt, 455 U.S. 478 (1982) .... 18,34
National Fire Insurance Co. v. Thompson,
281 U.S. 331 (1930) e*eeeoeeeeseensteeneeneeee 49
Nebraska Press Ass'n v. Stuart, 427 U.S.
539 (1976) eeeeseeeeneeeeneeeeeneeeneeeneeeee 40
Occidental Life Insurance Co. v. EEOC,
432 U.S. 355 (1977) eer eeeeweeeeneeneseneeneee 90
Orders v. Stotts, No. 82-204, October
Tern, 1982 e*eeeeeeeeeeeeeeeeeeeeeeeeeneee 94
- iv-
Cases Page
Roe v. Wade, 410 U.S. 113 (1973) «wesceeee 19,40
Rosario v. Rockefeller, 410 U.S. 752
(1973) *enrneeeeeweeeneeneeeenreneeeneeeneneteeee#eee#efeee. 40
SEC v. Sloan, 436 U.S. 103 (1978) ....4.. 37,41
Sosna v. Iowa, 419 U.S. 393 (1975) ..... 35,30
Southern Pacific Terminal Co. yv. ICC,
219 U.S. 498 (1911) weeuue. see@eoees , 33
Stotts v. Memphis Fire Department, No.
BO-1489 (6th Cir.) ceccceccees TETTETT 94
United Fuel Gas Co. v. Public Service
Commission, 278 U.S. 322 (1929) ...6.. 49
United States v. Armour & Co., 402
uU.Ss. 673 (1971) *eseseeeesweeneeseernee#en*1enteeneeneeeee 52
United States v. Corrick, 298 U.S.
435 (1936) se eweeweeneneeeeneeeeertee e*ereee#eenee#ee#es 49
United States v. ITT Continental Banking
Co., 420 U.S. 223 (1975) eetrevnevervreaeeeaee 21,52
United States v. New York Telephone Co.,
434 U.S. 159 (1977) eee eeew eee e eee eeene 37
United States v. Swift & Co., 287 U.S.
106 (1932) sree eeeneeneneeneneeeenreeneeeeneeeeee 65
United States v. United Shoe Machinery
Corp., 391 U.S. 244 (1968) wcccccceeee 686,69
United Steelworkers of America v. Weber,
No. 76-432, 443 U.s. 193 (1979) oeeeee 68,97
-= Ve
a
Page
University of Texas v. Camenisch, 451
U.S. 390 (1981) owe eevee eee eevee eeee 39,46,49
Weakley Co. Municipal Electric System
v. Vick, 309 S.W.2d 792 (Tenn. Ct.
App. West. Sect. 1957) *enerneneneeeneeneeneeeneee 103
Weinstein v. Bradford, 423 U.S. 147
(1975) se eewneenrteeeeneeenreeeeeeeneeee#ee#ee *eeeeee. 34
Williams v. City of New Orleans,
No. 82-3435 (5th Cir.) *enereerpneeeeneeeeneeeneee 43
Statutes
42 U.S.C. § 1981 *enrenereineeepeeeneenrteeeenreneeneeeneeee#ee 2
42 U.S.C. § 1983 *enereneneneneeteenrtneeteneeneeeeneee#ee 2
Title VII, Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e,
Ot SOGs ceeeeeeeeeseseesseceeesess passim
Section 703(h), 42 U.8.C § 2000e-
5(h) *eeeaeeeeeweeeneeneeeeneeeeeeeeeeee ass
Section 706(g), 42 U.S.C. § 2000e- passin
5(g) **eeeeeeeeeeeeeeeeeeeeeeeeeeene passim
Other Authoritics
Assirmative Action Appropriate Under
Title VII of Civil Rights Act of 1964,
As Amended, 29 CFR § 1608 (1982) ... 68
Executive Order No. 12067 .useceeecees 88
42 Opinion of Attorney General No. 37
(Sept. 22, 1969) eee ee eee eenene 89
Uniform Guidelines on Employee Selection
Procedures, 29 CFR § 1607 eeeeeeeeee 69
-~vi-
Nos. 82-206, 82-229
i i ee
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
eee
PIREFIGHTERS LOCAL UNION NO, 1784,
Petitioner,
Vv.
CARL W. STOTTS, et al.
—
ewe as se ee ee
MEMPHIS FIRE DEPARTMENT, et al.,
Petitioners,
Vv.
CARL W. STOTTS, et al.
On Writs of Certiorari to the United States
Court of Appeals for the Sixth Circuit
BRIEF FOR RESPONDENTS
STATEMENT OF THE CASE
On February 16, 1977, respondent
Carl Stotts, a black Memphis firefighter,
filed this class action alleging that
the Memphis Fire Department had engaged in
racial discrimination in hiring and
promotion in violation of the Fourteenth
Amendment, 42 U.S.C. §§ 1981 and 1983, and
Title VII of the 1964 Civil Rights Act.
(J.A. 9-12). Stotts specifically claimed
that he had been denied promotions solely
because of his race. (J.A. 10). On June
19, 1979, respondent Fred L. Jones, also a
black city firefighter, filed a complaint
with similar allegations, complaining in
particular that he had been denied promo-
tion to the position of Fire Inspector
solely because of his race. (J.A. 15-17).
The two proceedings were consolidated in
the district court.
This private litigation took place
against the background of a prior consent
decree entered into by the City of Memphis
and the United States Department of Justice
ee
. es & 2 ee al
in 1974. (J.A. 98-115). The 1974 Consent
Decree, which applied to several Memphis
city agencies, including the fire depart-
ment, required Memphis to achieve “through-
out the work force proportions of black ...
employees in each job classification
approximating their respective proportions
in the civilian work force." (J.A. 101).
In 1981, however, after the United States
decree had been in effect for seven years,
less than 12% of the uniformed fire depart-
ment employees were pacohs” sdeheunt
blacks accounted for 35% of the Memphis
area work tee In addition, many of
the positions beyond the entry level
jobs remained all-white or virtually all-
i, Exhibit C, Plaintiffs' Supplemental
emorandum In Support of a Preliminary
Injunction.
2/ City Petition A22.
3/
white. On April 25, 1980, after the
completion of extensive discovery, the
parties to the private litigation entered
into a consent decree. Paragraph 6 of that
decree obligated the city “to raise the
black representation in each job classifi-
cation to levels approximating the black
proportion of the civilian labor force."
(City Petition A64). The decree contained
several more specific, although not exclu-
sive, requirements as methods of achieving
this goal. With regard to hiring, para-
graph 7 required the city to attempt to
fill “on an annual basis at least 50% of
all vacancies with qualified black appli-
cants." (Id.) The city also agreed that
3/ Exhibit C, Plaintiffs' Supplemental
Memorandum in Support of a Preliminary
Injunction. These positions included Fire
Maintenance Mechanic (21 whites, 0 blacks),
District Chief (35 whites, 1 black), Fire
Alarm Operator III (20 whites, 1 black),
rh ges (84 whites, 2 blacks) and Driver
(296 whites, 15 blacks).
in making promotions it would seek to
assure that “at least 20%" of the fire-
fighters promoted into each position were
black, (Id. at A65); this obligation was
included to ensure that the overall goal
was reached “as quickly as practicable".
(Id.). The decree required the city to give
specified promotions to the two named
plaintiffs and to several other named black
employees listed in an Exhibit od Some
of these promotions were to occur imme-
Giately, while others were tc occur as
soon as the named individuals passed
examinations for the positions involved.
The decree expressly recited that its
purpose was “to remedy the past hiring and
promotion practices of the Memphis Fire
Department”, (id. at A64) and “to insure
v Exhibit A is set forth in Appendix A
o this brief.
that any disadvantage to minorities that
may have resulted from past hiring and
promotional practices be remedied....”
(Id. at A60). The district court was
authorized to issue “such further orders as
may be necessary Or appropriate to effec-
tuate the purpose of this decree." (Id. at
A69)
During the year after the entry of the
consent decree a number of problems arose.
Although the decree required t..ec “immediate
promotion" of eight black firefighters
listed in Exhibit A, the city did not
actually promote seed” tue several months
following final approval of the decree,
and then only after the plaintiffs filed a
Motion to Enforce the Consent Decree
5 The city did increase the salaries of
ese employees following approval of the
consent decree, but refused to give
them the rank, insignia, or assignments
to which they were entitled.
on July 25, 1980. In addition, the city
declined to hold a test for the position of
District Chief, thus preventing plaintiff
Stotts from obtaining the promotion guaran-
teed to him under Exhibit A of the decree.
Since paragraph 5 of the decree required
that promotional examinations be given “on
a regular basis, but in any event, at least
every two years” (City Petition A64), the
city's continued refusal to conduct a
District Chief test after December, 1980,
the second anniversary of the last such
test, was a clear violation of the decree.
Nonetheless, by the end of the first year
of the decree the city filed reports
stating that, pursuant to the decree, a
total of 18 new black employees had been
6/
hired, and a total of 18 black fire-
6/ See Appendix B to this brief.
7/
fighters had received promotions.
On May 4, 1981, however, the city
announced that, because of financial
problems, it intended to demote and lay
off a significant number of firefighters.
The employees to be laid off or demoted
were to be chosen under a Layoff Policy
that had been formulated by the city on
April 29, 1981. (J.A. 82-95). A list of
Fire Department personnel, also issued on
May 4 by the city, contained the names of
39 fire officers initially slated for
demotion; among that group were 23 blacks,
including 8 who had received their promo-
tions under the consent ona The city
ultimately proposed to demote 14 of the 18
blacks promoted under the decree, including
4 of the 8 blacks whose promotions were ex-
7/ See Appendix C to this brief.
The list was annexed as Exhibit B to
laintiffs' Supplemental Memorandum in
Support of a Preliminary Injunction.
>
9/
pressly required under Exhibit A, and
to lay off 15 of the 18 blacks who had
been hired under the Pa i
On May 4, 1981, plaintiffs sought
and obtained a temporary restraining order
forbidding the demoting or laying off of
any employees in the Fire Department.
(J.A. 20-23). On May 7, 1981, Pirefight-
ers Local Union No. 1784 was permitted
to intervene in this action with the con-
sent of the parties. (J.A. 3). On May 8,
1981, four days after the city announced
the proposed layoffs, a hearing was held
on respondents’ request for a preliminary
injunction (J.A. 29-81). Following that
hearing the district court lifted its
total prohibition against the laying off
or demotion of black employees. The
9/ See Appendix C to this brief.
10/ See Appendix B to this brief.
- 10 -
court held that the city could demote or
lay off black employees, but only so long
as it did not reduce the percentage of
blacks in four specified positions --
lieutenant, driver, inspector and private.
(City Petition A76, A78). The court
directed the city to submit for its
approval a plan for making any demotions
or layoffs. (Id.) This preliminary
injunction, announced from the bench on
May 8, 1981, was memorialized in an order
issued on May 18, 1981. The city and
union filed a notice of appeal on May 18,
1981. (J.A. 5).
On June 22, 1981, plaintiffs filed
a Motion for Additional Relief, seeking to
extend the rule contained in the May 18
preliminary injunction to five other
positions in which demotions or layoffs
were then scheduled -- Fire Alarm Operator
° 4 «
I, Home Fire Safety Representative, Fire
Prevention Supervisor, Clerk Typist, and
Research and Development Lieutenant.
(J.A. 123). Plaintiffs also noted that
the city had not filed its proposed
plan for compliance with the May 18 order,
and requested that it be required to do
so. A hearing on this motion was held
on June 23, 1981. Although the city did
not submit a written plan to the court,
the city Personnel Director testified at
that hearing that the city proposed to
comply with the May 18 order by exempting
from demotion or layoff a sufficient
number of blacks to evete reducing the
percentage of blacks in the four positions
covered by that order. (J.A. 134-35).
In an order dated June 25, 1981, the
district court approved tWat plan, but did
not issue any order requiring the city to
@ 12 «-
implement it. (City Petition A83). The
court refused to extend its May 18 order
to the positions of Home Fire Safety
Representative or Research and Development
Lieutenant, applying it only to the addi-
tional classifications of Fire Alarm
Operator I, Clerk Typist and Fire Preven-
tion Supervisor. (Id.) Neither the city,
the union, nor the plaintiffs appealed
from the June 25 order.
The actual impact of the May 18
preliminary injunction on the layoffs in
the Fire Department was extremely limited.
The city ultimately decided to lay off
only 24 privates. To comply with the May
18 order it was necessary that no more
than 3 of those laid off be black; under
the city's own Layoff Policy. 6 of the 24
privates who would have been laid off were
e 93 @
At/
black. Thus only three additional
whites were actually laid off as a result
of the May 18 order. Those three white
eteeenns” who were laid off on June
26 and 27, 1981, were reinstated on July
19, July 20, and July 23, 1901," respec
tively, each having been out of work
less than four weeks.
The plaintiffs never sought a final
injunction with regard to the 1981 layoffs
or demotions. The July, 1981, recalls
made any further injunctive relief regard-
ing layoffs entirely unnecessary. Once
the total number of privates on layoff
11/ See Appendix D to this brief. The
operation of that policy is described in
detail at pp. 82-84, infra.
12/ Stanley Darden, Gary Dennington, and
Larry Harmon.
13 These are the recall dates listed in
the personnel files of the three white
employees.
bette
@ 14 -
fell below 22, the application of the
city's April 29 Layoff Policy itself
assured that the proportion of black
privates would not be lower than the
pre-layoff ein Neither the city
nor the union ever asked for a trial to
finally resolve whether plaintiffs were
entitled to injunctive relief, or sought
to lift the preliminary injunction on the
ground that the plaintiffs had failed to do
so. This is hardly surprising, for after
July 23, 1981, the May 18 preliminary
injunction no longer had any operative
effect on layoffs of Fire Department
employees.
Both the city and the union, however,
vigorously pursued their appeal from the
May 18 preliminary injunction. On May
7, 1982, the court of appeals affirmed the
14/ Only 3 of the 21 least “senior” pri-
vates were black. See Appendix D.
- 1§ -
decision of the district court granting
the preliminary injunction. The court of
appeals found that the issuance of that
preliminary relief was not an abuse of dis-
cretion. (City Petition A31.). More spe-
cifically, the Sixth Circuit held that
there was a reasonable probability the
plaintiffs would prevail on the merits,
that the proposed layoffs would cause
irreparable injury, and that the granting
of preliminary relief was in the public
interest. (Id.) The city and union peti-
tioned for writs of certiorari to review
the court of appeals decision upholding the
May 18 order insofar as it granted a pre-
15/
liminary injunction regarding layoffs.
15/ The Questions Presented in both the
union and city petitions are expressly
limited to "layoffs." Although both
petitions note that the decisions below
also concerned demotions (City Petition
3, 5; Union Petition 4, 5), the arguments
contained in the petitions in support of
granting the writs refer to layoffs
- 16 -
SUMMARY OF ARGUMENT
I This is an appeal from a preliminary
injunction granted on May 18. 1981. The
clear intent of that injunction was only
to partially preserve the status quo
threatened by then imminent layoffs, not to
establish any permanent rule governing
layoffs. The preliminary injunction merely
preserves 1981 black employment levels,
and is thus literally inapplicable to
layoffs in 1983 or later in positions in
which black representation now exceeds
1981 levels.
Only three whites were actually laid
off as a result of the May 18 order --
15/ continued
(City Petition 8, 15; Union Petition 8,
9). While the issue before this Court may
thus be limited to layoffs, we note where
appropriate the facts relevant to the
proposed and actual demotions.
= {7 «
Stanley Darden, Gary Dennington, and Larry
Harmon. All three were recalled within a
month, and have been back at their jobs
throughout this appeal. Every person laid
off or demoted from a position affected by
the May 18 order has now been reinstated.
That order thus has no present effect, and
the underlying controversy is moot.
Petitioners earlier advised the Court
that the May 18 order had a continuing
impact on white workers, but that represen-
tation was inaccurate. The order did not
preclude whites from taking promotional
examinations, since no such tests were
given while the layoffs were in effect.
Neither did the preliminary injunction
postpone the automatic promotion to captain
given to certain firefighters with over 30
years service; that automatic promotion
applies only to firefighters hired prior to
1977, and all the firefighters who were
e 916 «
laid off had been hired in 1979 or later,
This is not a dispute "capable of
repetition, yet evading review." That
exception to the usual mootness rules
applies only where there is a “demonstrated
probability” the dispute will recur.
Murphy v. Hunt, 455 U.S. 478, 482 (1982).
Memphis has laid off firefighters only once
in its 162 year history, and is unlikely to
do so again while the consent decree re-
mains in effect. Layoffs are not by their
nature so short-lived that controversies
about them can never be reviewed on appeal.
Compare Garnett Co. v. DePasquale, 443 U.S.
368, 377 (1979)(pre-trial hearing), Roe vy.
Wade, 410 U.S. 113, 125 (1973) (pregnancy).
Layoffs in both private industry and the
public sector often go on for years; many
of the “layoffs” in the steel industry, for
example, are apparently permanent.
= 19 -
II- Since the order appealed from is only
a preliminary injunction the question
before this Court is whether the district
court abused its discretion in entering an
order to protect the status quo. Doran v.
Salem Inn, Inc., 422 U.S. 922, 932 (1975).
The standard for granting such preliminary
relief is whether the plaintiff is likely
to prevail on the merits, and whether the
plaintiff would suffer irreparable injury
were that relief denied.
The proposed layoffs vould have
violated the consent decree in several
ways. (1) Between April 1980 and May
1981 the defendants, to. comply with the
decree, hired 18 new black firefighters and
promoted 18 others; the city proposed in
the spring of 1981 to dismiss 15 of the new
hires and to rescind 14 of the promotions.
Exhibit A of the decree specifically
required the promotion of 9 named indi-
@ 26 -
viduals, including plaintiff Fred Jones;
the city proposed to rescind 6 of those
promotions. (2) Paragraph 6 of the decree
required the city to “raise” minority
representation in each position to levels
comparable to the civilian labor force.
Paragraph 8 contemplates that this goal is
to be achieved "as quickly as possible.”
The proposed layoffs and demotions would
have reduced minority representation, and
delayed the attainment of the mandated
employment levels. (3) The expressed
purpose of the decree is to remedy “any
disadvantage that may have resulted
from past hiring and promotional prac-
tices." (City Petition A60-A61). Based on
the necessarily limited record available at
the preliminary injunction hearing, the
district court was justified in concluding
that the proposed layoffs would "perpetuate
discrimination". (J.A. 30-31).
@- 29 «
In considering the likelihood that
plaintiffs would prevail on the merits, the
district court properly restricted its
inquiry to the language and purpose of the
consent decree. United States v. ITT
—- es ee
Continental Baking Co., 420 U.S. 223
(1975). The district judge's construction
of that decree is entitled to particular
deference since he was the same judge who
had earlier approved the decree and moni-
tored its implementation.
The preliminary injunction did not
require the city to utilize a race-consci-
ous layoff plan. That order left the city
free to adopt any plan for reducing per-
sonnel, or otherwise cutting costs, which
would have avoided any disparate impact on
minorities. The Firefighters Union offered
a number of racially neutral plans.
Neither plaintiffs nor the district court
expressed any preference regarding how
= 22 «
compliance was to be achieved. The choice
of a race-conscious layoff plan was made by
the city itself, which cannot now be heard
to complain about its own selection. The
union may still disagree with that choice,
but it never appealed from the district
court order of June 25, 1981, approving the
plan.
III. Petitioners contend that the consent
decree, as construed by the courts below,
volates Title VII. Their contentions, if
sustained, would virtually prohibit the use
of consent decrees in Title VII actions.
Petitiones urge, first, that under
section 703(h) of Title VII, no consent
decree can provide any relief adversely
affecting the seniority rights of whites,
until and unless there has been a judicial
determination that every minority benefi-
ciary of the decree was an actual victim of
e 23 «
discrimination. They also contend that
section 706(3) requires such an adjudica-
tion before a court can order into effect a
consent decree containing injunctive relief
requiring hiring or promotion adversely
affecting the interests of whites.
This construction of Title VII has no
support in the language of the statute,
in its legislative history or in the cases
decided thereunder. Moreover, such a
construction would, if sustained, require
"an employer to take to trial legal or
factual claims to which it knew there was
no defense. Complaints seeking hiring,
promotions, or constructive seniority could
never be settled on terms favorable to
plaintiffs. Such an extraordinary limita-
tion on the voluntary resolution of Title
VII litigation is inconsistent with Con-
gress’ expressed preference for concilia-
tion and settlement. Pord Motor Co. v.
@ 24 <
EEOC, U.S. , 73 L.Ed.2d 721 (1982).
Petitioners and the United States
assert that, as a result of the May 18
order, junior black employees were retained
while whites “with more years of service"
were laid off. (U.S. Brief, p. 21). This
is not true. The three whites laid off
as a result of that order were hired on
the same date as the three blacks who
remained at work. Under the City's
Layoff Policy these whites were to have
kept their jobs, rather than the blacks,
solely because employees with equal terms
of service and comparable personnel records
were ranked alphabetically. Whatever
protection section 703(h) may afford to
seniority systems, it conveys no comparable
special status on alphabetization.
ARGUMENT
I. THIS APPEAL IS MOOT
The May 18 order from which the city
- 25 -
and union have appealed is not a permanent
injunction regulating all future layoffs,
but a preliminary injunction clearly
intended to control only the particular
layoffs that were impending in the spring
of 1981. The order is expressly headed
"Order Granting Preliminary Injunction."
(City Petition A?77). It applies only to
the four particular positions -- lieuten-
ant, driver, inspector and private -- in
which demotions or layoffs were then
planned. (Id. at A78). The minimum
percentage of blacks which the city was
to retain was that of blacks "presently
employed" in those positions, (Id. at A76,
A78)(emphasis added), a standard which
would make no sense if applied to future
layoffs when minority employment levels
would doubtless be higher than in 1981.
Since the proport:ion of privates, lieu-
tenants and drivers is higher today than in
1981, the May 18, 1981, order would be
e 26 «
literally inapplicable to layoffs or
demotions occurring in 1983 in those
PO ad The district judge's reason-
ing was expressly based on the particular
circumstances that existed in 1981, “the
effect of these layoffs and reductions in
rank" (Id. at A78) and the fact that in
that year only 11 percent of the Fire
Department employees were black. (Id. at
A75).
All of the 1981 layoffs and demotions
which were the subject of the May 18
preliminary injunction have since ended.
16/ The proportion of blacks in each posi-
tion were as follows:
Percent Black Percent Black
Position January 1981 September 1983
Private 13.6% 16.2%
Driver 4.8% 5.2%
Lieutenant 12.1% 14.0%
(City Petition, All; Fire Department
Employee List, September 7, 1983.)
@- 27 «
By the spring of 1983 every Fire Department
employee who had been laid off or demoted
in 1981 had been offered back his old
position. The preliminary injunction ceased
to have any operative Significance long
before certiorari was granted, since most
of those who were laid off or demoted
following the issuance of that injunc-
tion would have been subject to the same
action even if no injunction had ever been
granted. In the case of the layoffs
subject to the May 18 preliminary injunc-
tion, 21 of the 24 individuals actually
laid off would have also been laid off
under the city's own April 29 Layoff
Policy. Only three whites were actually
laid off as a result of the May 18, 1981,
order, and the last of*them returned to
work on July 23, 1981.
Whether the May 18 preliminary injunc-
tion is upheld or reversed on appeal is a
- 26 «
matter devoid of any practical consequence.
No white is now out of work, or in a lesser
position, because of that order, and no
black is any longer retained in his or her
job because of it. If the May 18 prelimi-
nary injunction is upheld by this Court, no
black employee will receive any benefit;
if that order is reversed, no white will
profit thereby. Because the May 18 order is
literally inapplicable to any future
controversy, whether or not it is sustained
on appeal will not directly effect any
layoffs or demotions that might occur
subsequent to the decision of this Court.
Petitioners, however, have represented
to this Court that the May 18 order has a
continuing impact on white employees.
Petitioners’ Joint Opposition to Respon-
dents’ Suggestion of Mootness, pp. 5-7.
First, petitioners assert:
- 29 -
(T)]hose firefighters entitled under
municipal charter to promotion to
captain after 30 years’ service (City
of Memphis Charter, §67) will be
delayed in the realization of this
entitlement as a result of their
layoff. 17/
This is not correct. Section 67 was
amended in 1976 to confer automatic promo-
tions only on firefighters hired before
18/
September 15, 1976. All the employees
laid off in 1981 were hired in 1979 or
later. Second, petitioners assert:
While reduced in rank ... more senior
white firefighters lost their opportu-
nity to take examinations for the
purpose of securing promotions to the
next higher rank. 19/
This is not correct. Promotional examina-
tions were given on June 15-19, 1981, prior
17/ Petitioners’ Joint Opposition to
Respondents’ Suggestion of Mootness, p.
18/ The amendment was proposed by Ordi-
nance No. 2488, and approved by a referen-
dum of city voters on November 2, 1976.
19/ Petitioners’ Joint Opposition to
ts' Suggestion of Mootness, p. 6
n.1.
- 30 -
to the disputed layoffs. The three whites
laid off as a result of the May 18 order
left their jobs no earlier than June 26,
1981, and returned no later than July
23, 1981; no examinations were given during
this 28 day period, or at any time prior to
the reinstatement of all the employees on
temporary layoff or demotion. Third,
petitioners assert:
During the period white fire-
fighters were laid off, black
firefighters with equal or less
seniority continued to accumulate
seniority while their white
counterparts did not. One effect
of the layoffs has been to render
these white firefighters less
senior for purposes of future job
decisions and entitlements. 20/
The May !8 order does not forbid the city
to give employees seniority credit while
they are on layoff; black and white
employees accrued no such seniority while
20/ Id. at 5.
- 31 «
they were laid off solely as a result of
section 6(B) of the city's own Layoff
policy.” 26 the May 18 order is upheld
On appeal, the City of Memphis, which
adopted that policy unilaterally in April
1981, could nonetheless, with a stroke of
the pen, unilaterally alter that policy to
provide the seniority credit in question.
Conversely, even if the May 18 order is
reversed, employees who were laid off in
1981 still would receive no seniority
credit for that period unless the city
itself chooses to alter its Layoff Policy.
Either way, it is the City of Memphis, not
any decision of this Court, which will
determine whether such seniority credit is
21/ The Layoff Policy was adopted uni-
laterally by the city in April 1981.
Section 6(B) of that Policy reads:
B. Employees shall not receive senior-
ty | during their layoff period.
(J.A. ).
» 32 -
given to white or black emplovees. In
addition, the effect of the May 18 order on
the seniority of the three whites affected
was so small that it is exceedingly un-
likely it will ever affect their future
employment status even if the city refuses
to readjust their ry
Petitioners also suggest that, even if
the controversy concerning the May 18 order
is itself moot, the layoff dispute which
gave rise to it is one “‘'capable of repeti-
tion, yet evadint review’ Southern Pacific
22/ Darden, Dennington and Harmon each
Tost less than one month of seniority. No
"less senior" blacks were retained during
their layoff; the three blacks protected by
the May 18 order, Jones, Johnson and
McFadgon, had the same seniority date as
the whites who were laid off in their
place. The seniority loss at issue would
affect Darden, Dennington and Harmon only
in the unlikely event that in making some
future layoff, promotion or transfer
decision the city were choosing between one
of them and Jones or Johnson. McFadgon is
no longer employed by the Fire Department.
- 33 -
Terminal Co. v. I.C.C., 219 U.S. 498, 515
23/
¢9909).° But the exception to the
usual mootness rule announced in Southern
Pacific Terminal and its progeny is not
applicable to the instant case.
Petitioners assert that the contro-
versy which led to the May 18 order is
"capable of repetition” because “there is
no guarantee that ... in the future” there
will be no layoffs, and because whether
such layoffs will in fact occur is "en-
24/
tirely speculative." But
[t]he Court has never held that a
mere physical or theoretical
possibility was sufficient to
meet the test.... If this were
true, virtually any matter of
short duration would be review-
able. Rather, we have said that
there must be a “reasonable
expectation" or a “demonstrated
probability” that the same
controversy will recur involving
the same complaining party.
24/ Id. at 3.
e 34 <
25/
Murphy v. Hunt, 455 U.S. 478, 482 (1982).
There is in this case no “demonstrated
probability” that a layoff controversy
similar to that of 1981 will again occur
during the limited period during which the
consent decree will remain in effect. The
1981 layoffs that precipitated the May 18
order were the first in the 162 year
history of the City of Memphis. At that
rate the next layoff will occur in 2143,
and will effect only the great~-<«reat-
25/ See also Lane v. Williams, 455 U.S.
624, 633-34 (1982) (no “reasonable expecta-
tion" that defendant would again enter into
an uninformed plea bargain); Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (no
“demonstrated probability” former inmate
would again be incarcerated and seek
parole); Sosna v. Iowa, 419 U.S. 393,
399-400 (1975) (Court will not “speculate”
that now divorced petitioner meeting state
residence requirement would subsequently
marry, move from and return to state, and
then seek divorce).
33 -
great-great-grandchildren of the present
employees. Petitioners decline to "“guaran-
tee” that there will be no further layoffs
while the decree remains in effect, but
they also do not suggest that the city's
actual financial condition makes such
layoffs at all likely. In fact, that
financial situation has improved so much
Since the issuance of the May /18, 1981
order that in 1983 the city found it
possible both to hire 63 new cireglgnters™”
and to reduce the city pedporty tax
27/ c
rate. Even if layoffs were to occur to-
morrow, whether they would reduce the
proportion or even the number of blacks
in any given position would depend on the
number and type of l*yoffs. Had the city
26/ Fire Department Employee List, Sep-
tember 7, 1983.
27/ Memphis Commercial Appeal, May 25,
1983, p. Al.
- 36 -
in 1981 laid off 8 privates rather than 24,
for example, every firefighter affected
would have been whites” and no injunc-
tive relief would have been necessary. The
mere possibility that layoffs similar to
those in 1981 might occur at some point in
the distant future when the decree may
still be in effect falls far short of the
"reasonable expectation" of recurrence
required by the decisions of this Court.
See United States v. New York Telephone
Co., 434 U.S. 159, 165 n.6 (1977) (contro-
versy regarding pen registers not moot
in light of “the Government's determination
to continue to use them"); SEC v. Sloan,
436 U.S. 103, 109 n.5 (1978) (controversy
regarding SEC procedures not moot in case
of “chronic violator" subject to a series
of Commission orders); Carroll v_ President
28/ See Appendix D to this brief.
» 37 «
and Commissioners of Princess Anne, 393 U.S.
175, 178 (1968) (controversy regarding
injunctions against rallies not moot in
case of political activists who “sought to
continue their ... rallies").
Should a layoff controversy indeed
arise while the consent decree remains in
effect, the legal and factual issues
presented would doubtless be different than
in 1981. The identity and proportion of
blacks and whites affected by any future
layoff will certainly be different than in
1981; whether a substantial number of the
particular blacks then facing demotion or
layoff will have been hired or promoted
under the consent decree itself cannot be
foreseen. Plaintiffs may attempt to prove
at such a future hearing, as we did not
in this case, that the new layoffs, or
the existing or some subsequent Layoff
Policy, were motivated by racial considera-
= 38 -
tions or by a desire to evade the require-
ments of the consent decree. Plaintiffs
may seek injunctive relief that is broader
Or narrower in scope than that obtained in
this case. The low proportion of blacks in
the fire department work force, a signifi-
cant factor in the 1981 decision, will, one
hopes, have been improved upon. In short,
should the district court again be asked to
issue a preliminary injunction with regard
to layoffs, the legal issues whose probable
outcome will have to be assessed, and the
equitable considerations and claims as-
serted by each party, will necessarily
differ from the record upon which the
district court based its decision in 1981.
A future request for a permanent injunction
would of course be subject to an entirely
different legal standard than that applic-
able to a motion for a preliminary injunc-
@ 39 «-
tion. University of Texas v. Camenisch,
451 U.S. 390, 394-98 (1981).
Although the May 18 order regarding
layoffs was moot within a month after it
was implemented, that does not mean that
other decisions regarding layoffs will
necessarily or even probably “evade
review." This Court has held that require-
ment satisfied only by disputes which by
their very nature were certain to last only
a few weeks or months, such as controver-
sies concerning the closing of a court
during a pretrial ee pretrial de-
30/
tention, durational residence require-
= a
9/ Gannett Co. v. DePasquale, 443 U.S.
8, 377 (1979)3 Nebraska Press Ass'n, v,
tuart, 427 U.S, 539, 546-47 “(1976)
“[t]hese are by nature short-lived" ).
30/ Gerstein v_ Pugh, 420 U,S, 103 ‘i
n 1 (1975) ("Pretrial detention {s b
nature temporary....") ; Dunn yeaa
405 U.S, 330, 333 n.2 (1972).
@ 40 -
31/ 32/
ments, pregnancy, rules governing
the nomination of candidates for public
oftice,~” or orders expressly effective
for only a fixed and short period of
34/
time. Petitioners assert that layoffs are
by their very nature so brief that they
"could be expected" to end “during the
normal time required for the resolution of
the ne This contention, if
true, would come as welcome news to the
hundreds of thousands of men and women who
lf Sosna v. Iowa, 419 U.S. 393, 400-01
975); see also Rosario v. Rockefeller,
0 U.S. 752, 756 n.5 (1973).
32/ Roe v. Wade, 410 U.S. 113, 125 (1973).
33/ Moore v. Ogilvie, 394 U.S. 814, 816
34/ SEC v_ Sloan, 436 U.S. 103, 107-110
(1978) (10 day suspension orders); Carroll
v__President and Commissioners of Princess
Anne, 393 U.S. 175, 177 (1968) (10 day
injunction).
35/ Petitioners' Joint Opposition to
Respondents’ Suggestion of Mootness, p. 6.
@ 61 «
formerly worked in the steel automobile
chemical and other industries, who were
laid off years ago and who have no realis-
tic expectation of ever being recalled
Municipal layoffs can be as enduring as
those in private industry, police officers
laid off by New York City in 1975 were not
all recalled until 1982 and Detroit police
officers laid off in the last recession
still have not all be recalled. In fact,
layoffs vary enormously in duration; in
some instances, as here, employees return
to work in a matter of weeks, but in other
cases "layoff" is little more than a
euphemism for permanent dismissal.
The questions raised and briefed at
length by petitioners are not limited to
the specific consent decree involved in
this case, or to the particular legal
status or treatment of layoffs as such, but
are for the most part equally applicable to
= 62 -
the validity, construction and “modifica-
tion" of any consent decree and to all
consent decree provisions regarding promo-
tions and other terms and conditions of
employment. The arguments advanced by
petitioners regarding the special position
of seniority systems under Title VII of the
1964 Civil Rights Act concern the effects
of a consent decree or judicial order on
any aspect of such a system. We note that
the amicus brief filed by the United States
in this action is substantially the same as
amicus briefs it has filed in other actions
in which layoffs are not at setae What-
ever questions of ongoing importance
the petitioners, the amici and the Court
may believe were raised by the May 18 order
36 Williams v. City of New Orleans, No.
-3435 (Sth Cir.); Bratton v. City of
e 63 -
will not be forever denied appellate review
merely because they are not resolved in
this moot litigation.
Long forgotten in petitioners’ reso-
lute quest for some landmark decision by
this Court are Stanley Darden, Gary Den-
nington, and Larry Harmon -- the only
whites actually laid off as a result of
the May 18 order. Throughout the period
during which this dispute has raged, first
in the Sixth Circuit and then in this
Court, Darden, Dennington and Harmon have
been back at their jobs at the Memphis Fire
Department. Their supposed champions, the
City of Memphis and the Firefighters Local
Union No. 1784, could with a stroke of
their pens have restored the month of
37/
seniority and the modest income which
37/ The monthly income of Darden, Denning-
ton and Harmon in 1981 was $1267.63. Each
of them was laid off for less than a
month.
» 64 <
Darden, Dennington and Harmon lost while on
layoff. Instead, the city and union have
expended subsantial time and effort, and
paid counsel fees many times greater than
the wages at issue, in a quixotic appeal
which can win no possible relief for the
individuals on whose behalf it has osten-
sibly been moa” Whether or not the
district court abused its discretion in
granting the May 18 preliminary injunction,
may be a question about which the city and
union may wish an advisory opinion, or
about which historians of a later genera-
tion may debate, but that order today
imposes no restrictions on the defendants
in this action and confers no benefits on
the plaintiffs. The issues briefed by the
defendants and amici concerning the meaning
38/ Petitioners do not contend, for
example, that Darden, Dennington and Harmon
would be entitled to an award of back pay
if the May 18 order were overturned.
@ 48 «
of Title VII are of no greater importance
to the black and whits employees of the
Memphis Fire Department than to the mil-
lions of other workers whose rights
and expectations may be affected by any
construction of that statute. However
litigious the counsel in this dispute may
be, the resolution of these issues must
await the existence of a case whose outcome
will in fact have a direct and substantial
effect on the interests of the parties
themselves.
II. THE DISTRICT COURT DID ‘NOT ABUSE
ITS DISCRETION IN ISSUING A PRE-
LIMINARY 1] INJUNCTION | “LIMITING TI! “THE
LAYING OFF OF ‘BLACK _EMPLOYEES
Petitioners in this case seek review
not of a permanent injunction finally
adjudicating their rights, but of a pre-
liminary injunction. "The purpose of a
preliminary injunction is merely to pre-
serve the relative positions of the parties
@ 46 «
until a trial on the merits can be held ",
University of Texas v_ Camenisch, 451 U.S,
390, 395 (1981). The proceedings here
“bear the marks of the haste characteristic
of a request for a preliminary injunc-
tion." Id at 398. The hearing on that
request was held a mere four days after the
layoffs were announced. With the exception
of a single deposition held the day before
the ieee oe discovery was taken,
the trial judge noted that counsel for the
parties had not had "the usual time to
develop the issues, and take discovery, and
exchange information, and to call on each
other to state what they think the issues
are ...." (J.A. 30). The union interven-
ors submitted no written brief in the
district court, and the brief submitted by
39/ Respondents also attempted without
success to take the deposition of the city
personnel director, Joseph D. Sabatini.
» 47 «
the city understandably contained little of
the elaborate argument now offered in this
Court. Neither the parties nor the dis-
trict court at that early stage in this
controversy could forsee how many indi-
vidials of which race would actually be
demoted or laid off for what period
of time; the mayor testified, for example,
both that “in all likelihood” all those
demoted or laid off would be restored to
their jobs “within six months" (J.A. 39),
and that more layoffs were "a definite
possibility.” (J.A. 36).
On the limited record usually avail-
able in connection with a request for a
preliminary injunction, the responsibility
of the district court is not to attempt to
make a final determination of the merits
of the controversy, but to decide whether
the party seeking that relief has demon-
strated “that in the absence of its issu-
@ 48 «
ance he will suffer irreparable injury and
also that he is likely to prevail on the
merits." Doran v. Salem Inn, Inc., 422
U.S. 922, 931 (1975). The district court
may also weigh the interests of the op-
posing party, id., and of the public.
University of Texas v. Camenisch, 451 U.S.
390, 392 (1981). "(T)he standard of
appellate review is simply whether the
issuance of the injunction, in the light of
the applicable standard, constituted an
abuse of discretion." Doran v. Salem Inn,
Inc., 422 U.S. at 932; Brown v. Chote, 411
U.S. 452, 45/ (1973); United States v.
Corrick, 298 U.S. 435, 437-38 (1936);
National Fire Insurance Co. v. Thompson,
281 U.S. 331, 338 (1930); Alabama v. United
States, 279 U.S. 229, 230-31 (1929); United
Puel Gas Co. v. Public Service Commission,
278 U.S. 322, 326 (1929).
- 49 -
The court of appeals, in affirming the
issuance of the May 18 order, noted the
prerequisites established by this Court
for the awarding of such relief (City
Petition A30), and concluded that the
district judge "did not abuse his discre-
tion in granting the preliminary injunc-
tion.” (Id. A31). In this Court, however,
neither the city nor the union assert in so
many words that the granting of that
injunctive relief was an abuse of discre-
tion, or that plaintiffs failed to adduce
evidence of irreparable injury or proba-
ble success on the merits. Rather, peti-
tioners treat this appeal as if i* were
taken from a permanent injunction, press
for a final decision on the merits of the
controversy, and ask the Court to “dismiss
the request for injunctive relief." (City
Brief, p. 38)
- §@ -
Although the briefs of petitioners do
not directly address the relevant standard
of review, we treat them as asserting
that the granting of a preliminary injunc-
tion was an abuse of discretion, either
because there was no likelihood that
plaintiff could prevail on the merits. or
because of the scope of the injunctive
relief granted.
Both petitioners and the United States
discuss at length the legislative history
of various provisions of Title VII of
the 1964 Civil Rights Act. Had the May 18
order been preceded by and based on a trial
and resolution of the merits of plaintiffs
claims of racial discrimination, the
meaning of Title VII would be of undoubted
importance in ascertaining the appropriate
scope of injunctive relief. But the merits
of those claims had been resolved by the
1980 consent decree. Once that decree was
s
al
» $1 «
approved, any claims for additional relief
were to be judged by reference to the terms
of the settlement itself. "[{S]lince
consent decrees and orders have many of the
attributes of ordinary contracts, they
should be construed basically as contracts,
without reference to the legislation the
[plaintiff] originally sought to enforce."
United States v. ITT Continental Baking
Co., 420 U.S. 223, 236-37 (1975). The
"scope of a consent decree must be dis-
cerned within its four corners,” United
States v. Armour & Co., 402 U.S. 673, 682
(1971), mot by reference to the claims or
defenses which might have been asserted had
the action gone to trial. “Few persons
are in a better position to understand the
meaning of a consent decree than the
district judge who oversaw and approved
it." Brown v. Neeb, 644 F.2d 551, 558 n.12
(6th Cir. 1981).
- 52 -
In the district court proceedings
plaintiffs did not base their request for a
preliminary injunction on an attempt
to prove that the layoffs would violate
Title VII, but argued, as the city notes,
"that the proposed layoffs would violate
the terms of the 1980 Decree." (City
Petition, ried The district court
indicated it believed itself obligated to
act if the proposed layoffs would have the
very effect on the Fire Department work
force “which the Consent Decree undertook
to avoid." (J.A. 30). The court of
40/ Plaintiffs' Verified Application for
Temporary Restraining Order asserted the
layoffs and demotions would “effectively
destroy the affirmative relief granted by
this Court in the Consent Decree entered on
April 25, 1980." (J.A. 21) Plaintiffs'
Supplemental Memorandum in Support of a
Preliminary Injunction contended the
layoffs and demotions were “designed
to thwart gains made by blacks in the last
two years" and would “violate[] the spirit
of the 1980 Decree.” (Pp. 2-3).
@ §3 -
appeals, in sustaining the preliminary
injunction, also relied on the consent
decree:
The 1980 Decree imposes a duty on
the City to engage in certain
affirmative action in its hiring
and promotion decisions.... The
City contracted in the ... 1980
Decree[] to accomplish precisely
that which the layoffs would
destroy: a substantial increase
in the number of minorities in
supervisory positions.... [T]he
City's announcement ... was
in effect notice of the City's
intended anticipatory repudiation
of the ... 1980 Decree[]. The
announcement notified Plaintiffs
that (1) relief previously
granted pursuant to the Decree[]
would be diminished; and (2)
prospective relief under the
Decree[] would not be forth-
coming. (City Petition A32-A33).
The court of appeals recognized that the
plaintiffs and district court "merely
sought to compel compliance with the terms
and goals of the Decree[].” (Id. at
A33).
- 54 -
The record in this case provides a
substantial basis for the conclusion that
plaintiffs would ultimately have prevailed
in their challenge to the layoffs and
demotions as originally proposed. First,
many of the blacks slated for layoff or
demotion had been hired or promoted by the
city within the previous year in order to
comply with the terms of the 1980 consent
decree. Of the 18 blacks whom it had hired
under the decree since April, 19:80, the
city sought to layoff 1s. Of the 18
blacks whom it had promoted under the
decree since April, 1980, the city sought
to demote 14 Paragraph 9 and
Exhibit A of the consent decree expressly
required the city to give immediate promo-
tions to nine specific black employees,
41/ See Appendix B to this brief.
42/ See Appendix C to this brief.
e $$ «
including Fred Jones, one of the named
plaintiffs. Despite the fact that the
promotions required by paragraph 9 and
Exhibit A were not conditioned upon the
city's financial position, the city
proposed to demote Jones and five other
Exhibit A promotees. Had the city an-
nounced in May, 1980, that it was refusing
for financial reasons to make the promo-
tions required by paragraph 9 and Exhibit
A, the violation of the consent decree
would have been obvious. The city's
proposal in May, 1981, to rescind those
very promotions in May was hardly «. less
palpable violation. The city's obligation
to promote and hire the other blacks
involved was equally unconditional.
Second, paragraph 6 of the consent
decree obligated the city to take “reason-
able good faith efforts” “to raise the
black representation in each job classifi-
» $6 «
cation on the fire department to levels
approximating the black proportion of the
civilian labor force...." (City Petition
A64) (Emphasis ested)” This obligation
is equally unconditional; no circumstances
are mentioned under which the city may take
steps to actually lower black representa-
tion. The decree does make some allowance
for unforeseen problems in providing that
efforts to “increase” minority representa-
tion need only be “reasonablej" thus
paragraph 6 might plausibly be reai not to
require the city to hire or promote new
blacks into positions from which it was at
the same time actually laying off or
demoting whites. But that qualification
falls far short of authorizing the city to
reduce black representation. The United
—_—_—————- oss
$3/ The city recognizes that paragraph 6
Ss not merely precatory, but creates
an enforceable obligation. City Petition,
p. 4.
elite! a ee
@ 87 «
States dismisses paragraph 6 by insisting
that any reduction in the black work force
is merely a “delay in achieving the order's
goal." (U.S. Brief, p. 21 n.18). But the
Wanifest purpose of the decree is to
achieve that goal with all reasonable
dispatch. Paragraph 8 requires the city
to attempt to fill 20% of all promotions
with blacks “([(t]o insure as quickly as
possible the attainment of [the] long
range goal." (City Petition A65)(Emphasis
added). The 50% hiring goal in paragraph 7
obviously has the same purpose. The
United States may be in no hurry to see an
increase in minority employment in the
Memphis Fire Department, but under the
consent decree time is clearly of the
essence.
Third, the consent decree recites that
its purpose is to ensure “that any disad-
vantage that may have resulted from past
- $8 -
hiring and promotional practices be reme-
died...." (City Petition nso-a6t)~” The
city and union correctly recognize that
if a black had less seniority because of
past discrimination, a layoff or demotion
based on that reduced seniority would
perpetuate and aggravate a “disadvantage
that ... resulted from past hiring and
promotional practices." Such disadvantages
would also be sumebaatiot if, because of
the discriminatory denial of a promotion, a
black were excluded from a position in
which no layoffs or demotions occurred;
there were, for example, no demotions or
layoffs in 1981 from the position of
captain, but then as now virtually all the
captains were white. The city and union
‘vy See also id. at A64, ("The purpose of
this decree is to remedy the past hiring
and promotion practices of the Memphis
Pire Department with respect to the employ-
ment of blacks...."),
= §9 «
assert that, although the layoffs and
demotions may well perpetuate the effects
of past racial discrimination, the dis-
trict court had no authority to prevent
that perpetuation because Title VII does
not authorize redress for disadvantages
caused by the operation of a seniority
ceaia But it is by the words of the
consent decree, not of ‘Title VII, that
the district court's actions must be
measured, and the decree states without any
limitation an intent to correct “any
Gisadvantage” rooted in past discrimina-
tion. (Emphasis added). The layoff or
dismissal of a black employee because of
lesser seniority or occupancy of a lesser
position due to past discrimination would
clearly thwart that stated purpose, and the
Gistrict court correctly concluded that
45/ Union Brief, p. 21; City Brief, p. 27.
- 60 -
under.the consent decree the city could not
"lay people off in a manner that will
perpetuate discrimination against black
people.” (J.A. 30-31)
The United States, however, in an
argument embraced by neither the city or
the union, asserts on no fewer than six
occasions that the blacks who benefitted
from the May 18 order were not victims of
any unlawful employment discrimination,
(U.S. Brief, pp. 9, 11, 12 n. 13, 20, 21,
29), claiming that this is "“conceded[]."
Id. at 20. But the record in this case
contains nothing to substantiate that
assertion, and the pleadings do not reveal
any such concession. As a practical
matter, neither party was in a position at
the hearing of May 8, 1981, held only four
days after the announcement of the proposed
layoffs, to adduce evidence regarding which
of the blacks affected were the victims of
- 61 «
past discrimination, or even to ascertain
with certainty who those black employees
46/
would be. Counsel for the city actually
objected at that hearing to the introduc-
tion of any evidence regarding discrimina-
tion that had occurred prior to the consent
decree. (J A 58-59). The district judge,
based on his familiarity with the extensive
discovery that had occurred prior to the
settlement of the case in 1980, concluded:
[I]t would be naive not to
realize that the Pire Department
of this City was very discrimina-
tory towards black people for
years, and it really wasn't
corrected properly until the
Consent Decree was entered in
this cause. 47/
—_--— —-
46/ Of the three blacks who avoided layoff
because of the May 18 order, two -- Johnson
and McFadgon -- had been rejected for
meade by the Fire Department in
1 :
47/ City Petition A73.
7
.
-
» we
- 62 -
Regardless of whether, had a trial on the
merits been held, the consent decree would
have been construed to require the plain-
48/
tiffs, or to permit the defendants, to
adduce evidence regarding whether particu-
lar blacks were the victims of discrimina-
tion, the granting of preliminary relief
in light of the unavoidably limited
information available at the May 8, 1981
hearing, was clearly not an abuse of
discretion.
The city and union repeatedly object
that the decision of the district court
imposed on the city new obligations to
which it had never agreed. But their
characterization of the requirements of the
May 18 order as “new” is merely a con-
Clearly no such proof was relevant to
eersgragne & and 9 of the decree. See pp.
- 63 -
clusory method of reasserting their dis-
agreement with the decision below that the
proposed layoffs and demotions would
have violated the 1980 consent decree. The
fact that layoffs and demotions are not
expressly mentioned in the decree did not
mean that the city was free to violate or
frustrate the provisions of the decree so
long as it did so by means of layoffs or
demotions. Under paragraph 17 of the
decree, moreover, the district court is not
limited to forbidding violations of the
particularized requirements imposed by the
decree, but can also issue “such further
orders as may be necessary or appropriate
to effectuate the purposes of this decree."
(City Petition A69)(Emphasis added).
The court of appeals, in addition to
sustaining the preliminary injunction as
based on a plausible construction of the
@ 64 <
decree, also held in the alternative that
the district court had the authority to
"modify" the consent decree to limit
layoffs and demotions of black employees.
(City Petition 2A, 12A, 31A-37A). This
case does not involve a “modification" of
the consent decree in the sense in which
that term is used in United States v. Swift
& Co., 286 U.S. 106 (1932). In Swift the
defendants asked the Court to release them
from provisions of a consent decree ex-
pressly forbidding them to operate retail
meat markets or engage in other specified
activity. This Court held that the express
requirements of such a decree would not be
lifted in the absence of "a clear showing
of grievous wrong evoked by new and unfore-
seen conditions....” 286 U.S. at 119.
Similarly, in Hughes v. United States, 342
U.S. 353 (1952), this Court declined to
modify a consent decree to alter a provi-
a ee
@ 68 <-
sion expressly authorizing the defendant to
Own certain stock. 342 U.S. at 357-58.
But the consent decree contains no such
express reference to or authorization of
layoffs or demotions on any particular
basis; it is literally silent on the
subject. There is in the decree no layoff
provision to “modify.”
The use and meaning of the term
"modify" by the courts below derives from
the opinion of Judge Bailey Brown in Brown
v. Neeb, 644 F.2d 551 (6th Cir. 1981). In
Brown v. Neeb, as here, the district judge
had limited the layoffs of black employees,
relying on a consent decree that dealt
solely with hiring and promotions. Judge
Brown concluded,
{E]ven if layoffs by seniority
were not proscribed by the
consent decree as originally
entered, the district court had
the authority to, in effect
modify the consent decree to
- 66 -
proscribe layoffs by seniority.
This is true since the district
court ... determined that such
was necessary; due to changed
circumstances, to carry out the
expressed purpose and goal of
the consent decree.
644 F.2d at 565. The consent decree in
Brown v. Neeb contained a section, similar
49/
to paragraph 17 in the instant case,
empowering the court to enter “such further
orders as may be appropriate to effectuate
the provisions of the Order...." 644 P.2d
at 555. Regardless of whether judicial
action under such provisions is character-
ized as a “modification” of the more
specific provisions, it remains action
authorized by and within the four corners
of the decree itself.
Even in the absence of paragraph 17,
the order of the district court is sustain-
49/ See p. 64, supra.
@ 67 «
able as an exercise of the inherent
authority of federal courts to enter orders
necessary to ensure that a change in
circumstances does not frustrate the
remedial provisions of a C@fsent decree.
In exercising that authority the standard
to be applied is “whether the change
[would] serve[] to effectuate or to thwart
the basic purpose of the original consent
decree." Chrysler Corporation v. United
States, 316 U.S. 556, 562 (1942); see
also United States v. United Shoe Machinery
Corp., 391 U.S. 244, 248-49 (1968). "If a
plaintiff can show that modification of
the decree is crucial to the effectuation
of the purpose the decree was intended to
achieve, then a grievous wrong would be
perpetrated if the decree was not modi-
fied." Gautreaux v. Pierce, 535 F. Supp.
423, 426 n.7 (N.D. Ill. 1982). Regardless
of whether the steps which the city pro-
- 68 -
posed to take were technically a violation
of the consent decree, the authority
recognized in Chrysler Corporation v.
United States and United States v. United
Shoe Machinery Corp. was properly exer-
cised to prevent actions which would have
"virtually destroyed” the relief which
plaintiffs had negotiated and obtained in
and under the consent decree. (City
Petition A32).
Petitioners contend that affirmance of
the Sixth Circuit decision will discourage
settlement of Title VII actions by prompt-
ing fears on the part of employers that
consent decrees will be construed to impose
new and unbargained for obligations.
(City Brief, pp. 34-36; Union Brief, p. 25).
But it could be argued with equal force
that the reversal of that decision would .
Geter settlements by raising fears on the :
part of Title VII plaintiffs that consent
= 69 «-
decrees will be rendered nugatory by
changing circumstances or subsequent
interpretation. In reality, whenever
an individual or organization enters into a
written agreement, be it a consent decree,
a contract, or a lease, there is always
a danger that the document will be inter-
preted more broadly or narrowly than may be
desired. Better drafting. not rules of
construction guaranteeing success in
litigation to one party or the other, is
the traditional and appropriate method of
minimizing such risks. Regardless of the
outcome of the instant litigation, its
primary impact on Title VII settlements
will be to prompt the attorneys negotiating
future consent decrees to spell out with
precision how any layoffs and demotions are
to occur, rather than agreeing to decrees
which, as here, are concededly “silent” on
@- 70 «
those issues. (City Brief, p. i, Union
Brief, p- i).
The parties also appear to attack the
particular form of injunctive relief
awarded by the district court. The union
accuses the court of having “abrogated” the
seniority system. (Union Brief, p. i).
The city charges that the trial judge
with “requiring layoffs to be based upon
racial considerations.” (City Brief, p.
i). The United States claims "the decree
required the City to layoff employees in
accordance with racial quotas." (U.S.
Brief, p. 24).
The actual language of the May 18
order does not require any race-conscious
standard be used for selecting the employ-
ees to be laid off. That injunction only
limited the use of the seniority system
insofar as it will decrease the
percentage of black lieutenants,
- 71 -
drivers, inspectors and privates
that are presently employed....
(City Petition. A78)(Emphasis added). This
order, even if extended to all positions in
the Fire Department, still permitted the
routine application of the seniority system
in a wide variety of circumstances. First,
as we have seen, whether seniority based
layoffs would reduce the percentage of
black employees depended on the total
number of layoffs. If, for example,
the city had chosen to lay off 21 privates
rather than 24, there would have been no
Jisparate sapect. Thus, even though the
May 18 order was subsequently applied
to clerk typists, it had no effect there
Since “the original seniority system did
not operate so as to reduce the percentage
of minority employees." (City Brief, p. 8
50/ See Appendix D to this brief.
- 72 <
n.13). In addition, many positions re-
mained alieunite;~” tevyette there would
have had no racial impact whatever. The
May 18 order did not forbid the complete
elimination of a position, since that would
result in the laying off of all employees
holding it, and the city subsequently
proceeded to reduce employment in just that
manner. (See City Petition A82-A83).
Since the positions, and number of indi-
viduals in each, to be subject to layoff
was not governed by the Layoff Policy, out
remained in the discretion of the mayor
(J.A. 83), a more sensitive consideration
of where the layoffs were to be made would
have satisfied the May 18 order without the
slightest violation of the seniority
system.
51 In January, 1981, there were a total
of 92 whites in all white positions.
Exhibit C, Plaintiffs Supplemental Memoran-.
dum in Support of a Preliminary Injunction.
4
—e
@- 73 <
While this case was still pending in
the district court, the union itself urged
the adoption of a number of racially
neutral plans entirely consistent with the
May 18 order. The Firefighters Union
attempted to persuade the city to avoid the
necessity for layoffs by giving employees
the option of taking voluntary unpaid
leaves of absence in order to preserve the
jobs of their sie The American
Federation of State County and Municipal
Employees suggested that each employee be
permitted or required to take off one day
per month without md In its Answer,
the Firefighters urged that the court
enjoin all layoffs in the Fire Department
(J A. 25), forcing the city to make the
———— ee ee ee ee eee
74 Memphis Commercial Appeal, June 25,
81, P- 17.
53/ Id.
- 74 <
needed cuts in agencies which provided less
essential services and which were not
subject to the requirements of the consent
decree. The mayor noted that the need for
layoffs might be avoided simply by reducing
the number of hours worked by some or all
employees. (J.A. 38). The court observed
that the city might achieve a similar
result by providing incentives for early
retirement. (J.A. 74). In this Court,
the Amicus American Jewish Congress sug-
gests a number of other racially neutral
Gidkendetees™”’ thet might have been
utilized.
But while there were thus a variety of
racially-neutral methods available for
complying with the May 18 order, the
district court left the choice of method up
a Brief of the American Jewish Congress,
icus Curiae, in Support of Res ents,
pp. 28-39.
» 75 -
to the city. Plaintiffs took no position
in the district court regarding how compli-
ance should be achieved. It was the city,
not plaintiffs or the trial judge, which
selected the race-conscious plan that the
city personnel director first described to
the court on June 22, 1981. (J.A. 132).
The district judge did not, as the city
asserts, subsequently "“reguire[] layoffs
which contravened ... the seniority provi-
sions” (City Brief, p. 37)(Emphasis
added) or "“impos([e] ... a race conscious
layoff policy on an objecting municipality”
(id.)(emphasis added); the court's June 25
order merely “approved” the method selected
by the city itself. (City Petition A832).
The union, of course, is not responsi-
ble for the race-conscious plan chosen by
the city. Here, as in the district
court, the union objects to the city's
choice. The trial judge, noting the
e 16 <
union's objections to the procedures
for implementing that policy, observed "I
didn't call for the layoff, but I’m cer-
tainly not going to be a vehicle to get in
this dispute between the Union and the
City...." (J.A. 138). The union, however,
chose not to appeal from the June 25 order,
and thus is not entitled to ask this Court
to resolve its disagreement with the city
about that plan.
The injunctive relief granted by the
district court was, in comparison with the
consent decree violations involved, quite
limited. The temporary restraining order
approved on May 4, 1980, had forbidden the
city to lay off or demote any black
employees; had the preliminary injunction
contained a similar provision, it would
have had the effect of raising the propor-
tion of blacks in several positions, thus
carrying out paragraph 5 of the consent
@ 77 «
decree. Under the preliminary injunction
actually entered, the city was permitted to
lay off 18 black employees and to demote 5
ata The district court might have
forbidden the city to lay off any employee
hired as a result of the consent decree;
had it so ruled the city would have been
able to lay off only 6 black employees,
rather than 19.2 The limited relief
actually afforded by the preliminary
injunction relief clearly did not con-
stitute an abuse of discreticn.
IIl. THE CONSENT DECREE, AS CONSTRUED BY
THE COURTS BELOW, IS VALID
Assuming, arguendo, that the courts
below correctly interpreted the consent
55/ See Appendices B and C to this brief,
and Addendum A to the City Brief.
56/ See n. 55, supra. The court of
appeals regarded district courts decision
as reducing the city's obligations under
the consent decree. City Petition A34.
.
e 976 <
decree, the union and city contend that
the consent decree as so construed is
invalid. The union asserts that the
relief imposed by the district ccurt
"exceeds even that relief to which the City
and respondents might permissibly have
consented.” (Union Brief, p. 22 n. 17).
The city urges that the decree as construed
below "conflicts with congressional purpose
as clearly expressed in [Title VII] and as
Clearly expounded by this Court in prior
cases." (City Brief, p. 26). The conten-
tions of the city and union are of con-
siderable importance since they would, if
sustained, preclude the resolution through
conciliation and settlement of a substan-
tial portion of all Title VII cases.
The arguments of petitioners and of
the United States are grounded on section
703(h) of Title VII, which immunizes
certain seniority systems from challenge
= 98 «
under Title VII, and section 706(g) of Title
VII which describes the remedial authority
of a district court to enforce Title VII.
All three acknowledge, as they must, that
there are circumstances which, if found by
a court after a trial on the merits, would
require issuance of an order similar to
that of May 18; such relief would be
appropriate, for example, if a court held
that the affected blacks were the victims
of prior discrimination, or that the
seniority system was not bona fide. They
contend, however, that Title VII forbids a
defendant from agreeing in a consent decree
to the very relief for which it would be
liable if plaintiffs prevailed at trial.
Thus the United States urges "it is clear
that the City could not unilaterally
contract away the incumbent employees’
seniority rights ..." (U.S. Brief p. 22 n.
20). The city repeatedly argues that
- 80 -
seniority relief can only be provided to
"persons who have -++ been adjudged
victims of past discrimination.” (City
Brief, p. 29; see also id. at 26, 31,
33)(Emphasis added).
Whatever the merits of these conten-
tions, their relevance to this case depends
upon the assumption that the May 18
order required that more senior whites be
laid off while less senior blacks remained
at work. The United States contends,
"As a result of the district court's
decree, white firefighters with more years
of service than black employees were
furloughed ..." (U.S. Brief, p. 21). The
city advises the Court that “non-minority
employees with greater seniority than
skipped-over minority employees were laid
off ...." (City Brief. p. 9). The union
represents that “[a]s a result of [this]
order[], the City was required to lay off
- $1 -
«++ more senior incumbent nonminority
employees..." (Union Brief, p. 26).
The facts of this case are otherwise.
As is apparent from Addendum B to the
City's priet,~” the three whites laid
off as a result of the May 18 order,
Harmon, Dennington and Darden, were all
hired on November 5, 1979, the same day as
the three blacks, Jones, Johnson, and
McFadgon, who, as a result me * sy order,
were “retained in position". Far from
having “more years of service", as the
57/ See also Appendix D to this brief.
58/ The city declares that since 1974
blacks have been hired in numbers “far
exceeding the minority percentage within
the civilian labor force." City Brief, p.
29, n.25. In fact, the city did no hiring
between 1974 and 1977. While it hired
between 1977 and 1980, blacks were ap-
pointed in proportions that were somewhat
gous than the rate at which blacks applied
or employment.
- 82 -
United States asserts, those three whites
had not served so much as a day longer than
their three black co-workers. Since all
six employees had identical seniority, the
city's Layoff Policy could not. and
did not, select those to be laid off on the
basis of seniority. Rather, under para-
graph 3(c) of the Layoff Policy (J.A. 85),
when several employees have the same
seniority, the choice of the employees to
be laid off is to be made by city supervi-
sory officials after reviewing the person-
nel records of the employees concerned.
Where employees are deemed to have identi-
cal records, they are to be ranked alpha-
59/
betically.
59/ The Layoff Policy provides that the
ranking of employees with identical records
and seniority is to be based on any method
provided by an applicable Memorandus of
Understand with a union. (J.A. 85-86).
The Memor of Understanding with the
++ age eg calls for alphabetization.
(J.A. ).
le
@ $3 -
In the instant case the city appar-
ently concluded that the records of all
employees hired on November 5, 1979, were
indistinguishable, and therefore ordered
those employees alphabetically. (See City
Brief, Addendum B). Thus, under the Layoff
Policy, McFadgon, Johnson and Jones were to
have been laid off because "J" and "M”"
are after “"D" and "H" in the alphabet, and
because their employment records were only
as good as, but not better than, those of
Harmon, Dennington and Darden. The
principle the city proposed to apply was
not “last hired, first firea*, ~~ but
"simultaneously hired, reverse-alphabeti-
cally fired.” Such a scheme is no more a
"seniority system" than pulling names at
random out of a hat. Whatever importance
60/ See City Petition, p. 5; Union Brief,
pp. ll, 40.
oe
- 84 -
Congress may have attached to rights
acquired by greater length of service,
Title VII evinces no intention to attach
any talismanic significance to the sort of
arbitrary method utilized under the Layoff
Policy.
Even if the May 18 preliminary injunc-
tion had affected seniority rights rather
61/
than alphabetical rights, that order, and
the consent decree being so enforced, would
not have transgressed the provisions of
Title VII. First, section 703(h) of Title
VII does not insulate a seniority system
from alteration in the fashioning of a
remedy. Rather, that section helps to
61 The preliminary injunction did result
n demotions of more senior whites in place
of less senior blacks. City Brief, A5-A8.
The seniority system in the Memorandum of
Understanding, however, applies only to
layoffs. (J.A. 116-119). See also n.15,
supra.
- 85 -
define what is and is not a violation
of the Act, see e.g., Teamsters v. United
States, 431 U.S. 324 (1977), but it in no
way limits the remedial authority of the
federal courts. Franks v. Bowman Trans-
portation Co., 424 U.S. 747, 758 (1976).
In the instant case it is the language of
the consent decree, not the terms of Title
VII, which determines the relief to which
respondents are entitled to relief.
Second, Petitioners do not deny that a
plaintiff could, consistent with Title VII,
win at trial relief similar to or even
broader than that contained in the May 18
order. They urge, however, that a defen-
dant may not agree to, and a court should
not approve, a settlement containing
precisely the same relief. On this view an
employer, however certain it might be of
losing at trial, could not acquiesce in a
° 66 -
settlement which had any adverse impact on
the seniority rights or expectations of
white employees. The effect of such a rule
would not be limited to consent decree
provisions regarding layoffs; most remedial
action traditionally contained in consent
decrees would be also forbidden. Where
seniority is a factor in promotions, for
example, a consent decree establishing
goals for future minority promotions would
be invalid. Not a single black employee
could receive a promotion in such a case
unless and until a federal judge, after a
hearing on the merits, first concluded that
the employee was an “actual victim" of
discrimination.
A Title VII case alleging discrimina-
tion in hiring, and seeking constructive
seniority for the alleged victims of that
unlawful practice, simply could not be
settled on terms favorable to the plain-
@ 67
tiffs. Disputes about whether a seniority
system was bona fide, or about the identi-
ties of the blacks denied seniority because
of discrimination, could never be resolved
short of trial. The United States candidly
acknowledges that this interpretation of
Title VII would, in the view of the Equal
Employment Opportunity Commission, "call
into question numerous extant consent
decrees and conciliation agreements to
which the EEOC is a party." (U.S. Brief
p. 24 n. 23).
62 This observation applies with equal
orce to the many judgments and consent
decrees to which the United States is a
party because the United States' position
in this case is a recent departure from the
consistent position it has taken in prior
years. For example, in a brief filed in
the Third Circuit on December 13, 1976 in
EEOC v. American Telephone and Telegraph
Co., 556 F.2d 167 (3d Cir. 1977), cert.
denied, 438 U.S. 915 (1978) the United
States and the E£.E.0.C. argued that
The district courts remedial authority
under Section 706(g) ... to order
race ... conscious goals to correct
62/ continued
the effects of past discrimination is
not limited by Sections 703(a), (j) or
(nh).
Respondents have reproduced the Govern-
ment's persuasive argument to the Third
Circuit at Appendix E of this brief.
It should also be noted that the
present position of the United States
is in direct contravention of existing
regulations and guidelines of several
Pederal Agencies, including those of the
Department of Justice. See, e.g,, Affirma-
tive Action Appropriate Under Title VII of
the Civil Rights Act of 1964, As Amended,
29 C.FP.R. § 1608 (1982) (specifically
endorsing the use of goals and timetables
in affirmative actions plans “regardless of
whether the persons benefited were them-
selves the victims of ... past discrimina-
tion,”) 29 C.F.R. § 1608.4(c). The regula-
tions promulgated by the EEOC are particu-
larly persuasve for Congress has directed
that the EEOC coordinate efforts by all
federal agencies to enforce equal employ-
ment opportunity laws and policies. See 42
U.S.C. § 2000e-14, as amended by Reorgan-
ization Plan No. 1 of 1978, 43 Fed. Reg.
19807 (1978). See also Executive Order No.
12067, requiring the EEOC to “provide
leadership and coordination to the efforts
of Federal departments ... to enforce all
Federal statutes ... which require equal
employment opportunity ..." 43 Fed. Reg.
28967 (July 5, 1978). See also Brief
for petitioners the United States and the
Equal Employment eet dee sre ne
Un k
- 89 -
The United States and petitioners
appear to go even further, and urge that a
consent decree is invalid if it provides
any relief to a black who is not a proven
victim of discrimination. (City Brief, pp.
23-30; Union Brief pp. 30-37, United States
Brief, pp. 23-29). They rely on section
706(g) of Title VII, 42 U.S.C. § 2000e-
5(g), which provides in part:
No Order of the court shall require
«+++ the hiring ... or promotion of
an individual as an employee, or the
payment to him of any back pay,
if such individual was ... refused
employment or advancement ... for any
reason other than discrimination.
Petitioners contend that this provision is
fully applicable to a consent decree,
and prohibits a court from ordering into
62/ continued \
Att'y Gen. No. 37 (Sept. 22, 1969);
Uniform Guidelines on Employee Selection
Procedures, Appendix (Pclicy Statement on
— Action), 29 C.F.R. § 1607.17
(1982).
- 90 -
effect a consent decree which contains any
of the relief specified in section 706(g)
unless every minority beneficiary has been
adjudged by the court to be the victim of
discrimination. This contention, if sus-
tained, would virtually abolish consent
63/
decrees in Title VII cases. Despite Ford
&3/ The limitation on the settlement of
civil litigation now advocated by the city,
the union and the United States has no
precedent in federal law. It would compel
employers to defend practices and decisions
they knew to be unlawful, and then to pay
the prevailing plaintiffs an attorneys fee
for work done at trials whose outcome was
never in doubt. Requiring the trial of a
substantial number of employment discrimi-
nation cases in which the plaintiffs and
defendants are in complete agreement
regarding the legal and factual issues
involved might be justified if the language
and legislative history of Title VII
demonstrated implacable congressional
opposition to settlement by consent decree.
But that history and language reveal, on
the contrary, that Congress expressed a
particular preference for such voluntary
resolution of Title VII litigation. Ford
Motor Co. v. EEOC, 73 L.Ed.2d 721, 730
; arson v. American Prands s Inc.,
450 U.S. o n. e t
;
Life Insurance Co. v. EEOC, 432 -S. ,
- 91 -
Motor Co. v. EEOC, 73 L.Ed.2d 721 (1982),
no court could approve, prior to trial, a
consent decree ordering the hiring or
promotion of a single individual. Equally
impermissible would be consent decree
awards of back pay, since section 706(g)
applies to monetary as well as injunctive
relief. Measured by the standard now
advanced by the city, the consent decree in
this case, even under the narrow construc-
tion urged by the city itself, would be
invalid, since it required the promotion of
63/ continued
368 (1977). Alexander v. Gardner-Denver
Co., 415 U.S. 36, 44 (1974). <Any restric-
tion on the scope of relief which may be
encompassed by a consent decree would be
inconsistent with the principle announced
in Ford Motor Co. v. EEOC that “the legal
rules fashioned to implement Title VII
should be designed ... to encourage Title
VII defendants promptly to make curative,
unconditional job offers to Title VII
claimants" 73 L.Ed.2d at 730.
- 92 -
13 named individuals, directed the payment
of back pay to a larger group, and com-
pelled the city to meet a goal of 50%
minority hiring and 20% minority promotions,
all without a judicial determination that
any of the beneficiaries were actual
victims of discrimination. This view,
embraced by the United States as well,
would invalidate the consent decree entered
into in 1974 between the United States and
the city, since that decree also estab-
lished a 50% minority hiring goal. See
also n.62, supra.
The extent to which petitioners’
contentions would, if sustained, interfere
with the routine settlement of Title VII
litigation is illustrated by the complete
inconsistency between the arguments now
advanced by the city in attacking the May
18 order and the arguments the city made
two years ago in defending the very consent
@ 93 <-
decree involved in this case. Following
the announcement of the city's intention to
enter into that decree, a group of white
firefighters, including D. L. Orders,
sought to intervene in this litigation and
attempted to seek modification of that
decree. In appealing from the denial of
intervention, Orders made virtually the
Same argument now advanced by the city,
objecting in particular to the 20% minority
promotion goal. Orders contended:
The Defendants did not adequately
represent Appellants’ interests
when they agreed to promotion
goals which have an adverse impact
upon non-minority employees, the
court not having found any past
and continuing discrimination
in promotions to warrant such
equitable relief. Title VII does
not allow preferential promotion to
individuals not shown to be vic-
tims of past discrimination. ...
Therefore, the district court erred
in granting class-based relief to
persons who are not identifiable
victims of specific discrimina-
- 94 -
tion.... To deprive non-minority
employees of the expectations of
advancement by promotional
goals for minority employees absent
a finding of continuing discrimi-
nation in promotions is an improper
violation of ... their statutory
rights under Title VII. 64/
The city responded:
The facts reveal ... continuing
past discriminatory practices
[which] clearly support the use of
the promotional goals provided for
by the Decree.... [T]he entry of
the Decree is a determination by
the Court of Plaintiffs' eee
probability of success on the
merits.... {T]he Consent Decree
providing for promotional goals is
not improper us the Decree is a
determination that Plaintiffs ...
claims of past racial discrimina-
tion were supported by the
facts... 65/
64/ Brief on Behalf of Proposed Interve-
nors-Appellants, Stotts v. Memphis Fire
Department, No. 80-1489 (6th r.) Pp.
° ers advanced the same argument in
this Court. See Petition for Writ of Cer-
tiorari, Orders v. Stotts, No. 82-204,
October Term, 1982, pp. 28-29.
65 Brief on Behalf of Defendants-Appel-
ees' Stotts v. City of Memphis, No.
80-1469 ’ Pp. on .
- 9$ -
This brief was filed on March 5, 1981.
Sixty-four days later the city submitted
its first memorandum in opposition to the
requested preliminary injunction at issue
here, insisting “the Defendants have
specifically denied any prior discrimina-
tory conduct" and that “there is no judi-
cial finding of discrimination by the
Defendants...." 66/
In any event, nothing in section
706(g), its legislative history or the
cases decided under Title VII support the
position petitioners, the United States and
the AFL-CIO now advocate. EEOC vy. American
Telephone & Telegraph Co., 556 F.2d 167,
177 (3d Cir. 1977), cert. denied, 438 U.S.
915 (1978). In view of the extensive
treatment of this issue given by a number
—————— — — — = = = — — — — =
66/ Defendants' Brief in Opposition to
Plaintiffs’ Application for Preliminary
Injunction, p. 9.
- 96 -
67/
of amici in support of respondents, we
will not re-canvass the legislative history
or the cases in this brief.
By its terms, section 706(g) applies
only to judicial orders. It is not
intended to limit voluntary agreements
between Title VII plaintiffs and defen-
dants, since it applies only to judicial
orders and it does not limit concilia-
tion agreements negotiated by the EEOC. It
is inconceivable that Congress intended to
prohibit the courts from approving the same
settlements which were clearly permissible
prior to the commencement of litigation,
and which could be entered into without
67/ See, @.g., Brief of the Lawyers
Committee for Civil Rights Under Law as
Amicus Curiae and Brief of the Mexican
American Legal Defense Fund as Amicus
Curiae.
- 97 «
judicial approval if litigants so desired.
See United Steelworkers of America vy.
Weber, 443 U.S. 193 (1979).
Petitioners’ position was implicitly
rejected by this Court in Carson v. Ameri-
can Brands, Inc., 450 U.S. 79 (1981).
In that case the district court, applying
an approach similar to that advanced by the
city and union here, refused to approve
a Title VII consent decree containing
remedial relief provisions because they
"did not rest solidly on evidence of
discrimination and ... were not expressly
limited to actual victims of discrimina-
tion". 450 U.S. at. 87 n. 12; see 446 PF.
Supp. 780, 788-790 (E.D. Va. 1977). In
holding that the district court's action
constituted an appealable order, the Court
commented:
Courts judge the fairness of a
proposed compromise by weighing the
- 98 -
plaintiff's likelihood of success
on the merits against the amount
and form of the relief offered
in the settlement.... They do not
decide the merits of the case or
resolve unsettled legal questions.
450 U.S. at 88 n. 14. If, as petitioners
contend, consent decree relief affecting
seniority rights can only be afforded to
proven victims of discrimination, a court
asked to pass on such a decree would be
compelled to ascertain whether plaintiffs
were certain of success and to “decide the
merits of the case” of every minority
employee to whom that relief was to
be provided.
Petitioners’ assertion that Title vii
never authorizes injunctive relief benefit-
ting non-victims is unfounded. Although
proven victims of past discrimination are
frequently the primary direct beneficiaries
of judicially ordered relief, there
are circumstances in which limiting relief
- 99 -
to that group would clearly frustrate the
purposes to Title VII. An employer intent
upon excluding blacks may choose to resort
to methods of discrimination which make it
impossible to determine who the victims of
that violation were. Where an employer
engages in racially selective word-of-mouth
recruiting, for example, there is usually
no way to determine which blacks would have
apolied and been hired had that not oc-
curred. A similar result can be achieved
simply by refusing to keep records of the
names of unsuccessful applicants. If a
court's inability to identify the victims
of discrimination automatically precluded
remedial relief in such cases, racist
employers would have a foolproof method for
excluding minorities from some or all
positions.
In addition, in a number of situations
the actual victims of discrimination will
- 100 -
predictably have no interest in injunctive
relief which is not awarded until long
after the violation at issue. Casual
laborers denied jobs by a construction
company may still want those positions a
year after that violation, but college
teachers denied employment at one school
are likely to accept positions at other
institutions possibly hundreds or thousands
of miles away, and be understandably un-
willing to endure the professional and
personal upheaval involved in returning to
68/
the school which first rejected them. In
such a case, on petitioners’ theory, the
employer would be guilty of a clear viola-
tion of the law, the white beneficiaries of
that illegal conduct would be known, and
yet the federal courts would be powerless
68 Cf. Ford Motor Co. v. EEOC, 73 L.Ed.2d
1, 737 n.2? (1982).
- 101 -
to order remedial injunctive relief.
The purposes of Title VII, moreover,
extend beyond providing protection for
minority employees and job applicants. As
the United States reminded this Court
several years ago:
Congress ... recognized when it
extended Title VII to state and local
governments ... [that] the effects of
employment discrimination in this
setting extend well beyond the loss
of employment opportunities by par-
ticular individuals. Such discrimina-
tion deprives [a public] agency of the
perspective of minority groups regard-
ing the impact of its programs on
minorities; it fosters distrust on the
part of minorities of governmental
functions carried out by personnel who
are not representative of the commu-~
nity at large ... and it sets a highly
visible example of discrimination, or
avtquiesence, in the results of past
discrimination. 69/
§2/ Brief of the United States and —_
ployment Opportunity Commission ming sk
"9 = -
v. Department of Corrections, No.
Pp- .
- 102 -
Where past unlawful discrimination has
brought about the exclusion of minorities
from positions in such a public agency,
Title VII requires that minorities be
placed in those positions with all reason-
able dispatch, regardless of whether the
particular employees so excluded can be
located. See n.62, supra and Appendix E.
Vindication of the Fourteenth Amendment's
prohibition ag inst intentional discrimina-
tion, a prohibition not limited by any
provision comparable <:o section 703(h) or
section 706(g), certainly requires no less.
The Amicus AFL-CIO, in an argument not
advanced by the PFirefighters Union itself,
asserts that the consent decree would be
invalid to the extent that it overrides
provisions of the Memorandum of Understand-
ing between the city and the union.
(AFL-CIO Brief, p. 2, n.1). The AFL-CIO
acknowledges, however, that its view would
- 103 -
be irrelevant if that Memorandum did not
create “legally enforceable seniority
rights." (Id.) The reason why the Fire~
fighters have refused to advance this
argument is not obscure. In 1978, PFire-
fighters Local Union 1784, the petitioner
in this case, was sued for damages al-
legedly caused by an unlawful firefighters
strike; the plaintiff grounded his cause of
action in part on a claim that the strike
violated the Memorandum of Understanding.
The union insisted, in its defense, that
that Memorandum was unenforceable:
As it made clear in the case of
Weakley Co_ Municipal Electric System
v. Vick, 309 S.W.2d 792 (Tenn. Ct. App.
West. Sect. 1957), a labor contract or
collective bargaining agreement be-
tween a municipality and a labor
union is not enforceable in Tennessee.
While a municipality and a union can
enter into a memorandum of understand-
ing or agreement regarding wages, hours
and working conditions of employees,
such an agreement is not enforceable in
the courts. Thus, even if the document
in question was a contract, plainitff
- 104 -
has sued on an unenforceable con-
tract.... 70/
This brief was filed by the same attorneys
who now represent the union in this Court.
The Tennessee courts have upheld the
union's contention that its Memorandum of
Understanding is unenforceable. Fulenwider
v. Firefighters Association Local Union
1784, 649 S.W.2d 268 (Tenn. Sup. Ct.,
1982).
CONCLUSION
The writs of cer..orari should be
dismissed on the ground that the contro-
versy regarding the preliminary injunction
70/ Supplemental Memorandum In Support Of
al Union Defendant's Motion to Dismiss,
Firefighters Association
- 105 -
is now moot. Should the Court conclude
that this issue is not moot, the decision
of the court of appeals should be affirmed.
Respectfully submitted,
THOMAS M. DANIEL
RICHARD B. FIELDS*
COX & FIELDS
707 Adams Avenue
Memphis, Tennessee
(901) 525-8601
JACK GREENBERG
O. PETER SHERWOOD
CLYDE E. MURPHY
RONALD L. ELLIS
ERIC SCHNAPPER
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397
BARRY L. GOLDSTEIN
Suite 904
806 15th Street, N.W.
Washington, D.C. 20005
(202) 638-3278
Attorneys for Respondents
* Counsel of Record
APPENDIX A
EXHIBIT A to The 1980 Consent Decree
Immediate Promotions:
A. Fire Inspector
Curtis Richmond
William Carter
John Cooper
Raymond McGahee
Fred Jones
B. Deputy Fire Marshall
Norvell Wallace
Ce Driver
Willie Taylor
D. Fire Prevention Super. in Inspection
Clarence Howard
E. “Metro Arson Scuad Inspector
Grafton Logan
Conditional Promotions:
A. Emergency Unit Lieutenant
Robert Young may have the next opening.
B. District Chief
Carl W. Stotts when he passes the District
Chief's Test.
c. Firefighting Captain
Ben Lewis when he passes the Captain's Test.
D. Maintenance Mechanic
Pred Walton may have the next opening when
available upon receipt of diesel mechanic
certification.
APPENDIX B
Blacks Hired Pursuant to Consent Decree
@Qwsanauwekwn —
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
Mary Hopkins
Laura Brown
. Olenda Clifton
Carlene Franklin
. Tina Hunt
Rida Ivery
Doris Jackson
Rufus Jefferson
Carolyn Powell
Willie Pruitt
Rose Strong
Prase Walker
Rickie Stokes
Denite Matshews
Teresa Taylor
Sharlene Warren
Raymond Gales
Gregory Hart
Positio:
Clerk Typist
Home
Home
Home
Home
Home
Home
Home
Home
Home
Home
Home
Fire
Fire
Fire
Fire
Pire
Fire
Fire
Fire
Pire
Fire
Fire
Personnel
Auto Parts
Safety
Safety
Safety
Safety
Safety
Safety
Safety
Safety
Safety
Safety
Safety
Technician
Fire Alarm Operator
Fire Alarm Operator
Fire Alarm Operetor
Repairer
re
APPENDIX C
Blacks Promoted Pursuant to Consent Decree
l.
L2.
13.
L4.
LS.
L6.
7.
8.
Norvel Wallace *
Willie Taylor
Johnny Harrison
Chester Anderson
Ray Cobb
Don Hulbert
William Kegler
Percy Alexander
Quincey McKay
Roscoe Tate
John Alsobrook
William Carter *
John Cooper *
Fred Jones *
Grafton Logan *
Raymond McGahee *
Curtis Richmond *
Clarence Howard *
Position
Promoted To
Fire
Deputy
Marshall
Driver
Driver
Lieutenant
Lieutenant
Lieutenant
Lieutenant
Lieutenant
Lieutenant
Lieutenant
Lieutenant
Fire
Fire
Fire
Fire
Fire
Pire
Fire
Inspector
Inspector
Inspector
Inspector
Inspector
Inspector
atus
Protected by
injunction
Protected by
injunction
Protected by
injunction
Protected by
injunction
Protected by
injunction
Protected by
injunction
Protected by
injunction
Protected by
injunction
Demoted
Protected by
injunction .
Demoted
Protected by
injunction
Demoted
Prevention Protected by
Supervisor
} Promotion expressly required by
| Bxhibit A of the Consent Decree.
injunction
Name Seniority Date Race
1. Maury Tennyson 2-1-81 w
2. Harold Poston 1-24-81 ”
3. Ken O. Ellis 12-17-80 w
4. Glenn Meadors 12-4-80 w
5. Raymond Ray 9-20-80 nw
6. Ernest E. Hulbert 7-17-80 nw
7. Charles T. Belk 4-17-80 n
8. Larry Kirby 1-18-80 w
9. Leo Winfrey 11-5-79 B
10. James Winfield 11-5-79 w
11. Dell Ray Travis 11-5-79 w
12. Terry Thaxton 11-5-79 B
13. William Starrett 11-5-79 w
14. John D. Payne 11-5-79 w
15. James F. Morgan 11-5-79 w
16. Harold L. Moore 11-5-79 B
17. Timothy B. Mitchell 11-5-79 w
18. Cornelius McPadgon 11-5-79 B
19. Michael Maxwell 11-5-79 w
20. Tommy Mansfield 11-5-79 w
21. Billy L. Mansel 11-5-79 w
22. Javier Lerma 11-5-79 Ww
23. Keith Jones 11-5-79 B
24. Willie Johnson 11-5-79 B
25. Amos Hester 11-5-79 B
26. Larry Harris 11-5-79 B
27. Larry Harmon 11-5-79 Ww
28. Alonzo Gardner 11-5-79 B
29. Gary Dennington 11-5-79 Ww
30. Stanley Darden 11-5-79 Ww
31. Roy Currie 11-5-79 B
32. Prederick Cotton 11-5-79 B
APPENDIX D
Least Senior Privates, June 1981
al Faproxees A Same ‘Hire Date
ati
33.
34.
35.
36.
37.
38.
39.
40.
APPENDIX D2
Norris Chism
Franklin Cathley
Thomas Burk
William Bryant
John Brown
Ronald Braden
Michael Bonds
Daryl Anderson
11-5-79
11-5-79
11-5-79
11-5-79
11-5-79
11-5-79
11-5-79
11-5-79
Zwwwz=z=zo
“=
nu
- le -
APPENDIX E
A verbatim reproduction of pages 18-31
of Brief for the Plaintiffs-Appellees (EEOC
and United States) sub mitted to the United
States Court of Appeals for the Third
Circuit in Nos. 76-2217, 76-2281 and
76-2285, Equal Employment Opportunity
Commission v. American Telephone and
Telegraph Co.
A. The district court's remedial
authority under Section 706(g)
and Executive Order 11246 to
order race and sex conscious
goals to correct the effects of
past discrimination is not
limited by Sections 703(a), (j)
or (h).
The Congress has given the district
courts broad remedial authority to “order
such affirmative relief as may be appro-
priate ... or any other equitable relief as
the court deems appropriate." Section
14/
706(g).
tee Section 706(g), 42 U.S.C. § 2000e-5(g)
Supp. II, 1972), is set out in an appendix
to this brief.
@- 26 -
In cases of racial discrimination, the
"courts has not merely the power but the
duty to render a decree which will so far
as possible eliminate the discriminatory
effects of the past as well as bar like
discrimination in the future.” Louisiana
v. United States, 380 U.S. 145, 154 (1965).
That principle is fully applicable to
employment discrimination cases, and has
twice been reaffirmed by the Supreme Court
in construing the district court's author-
ity and duty to order relief under Section
706(g). Albemarle Paper Co. v. Moody, 422
U.S. 405, 418 (1976); Franks v. Bowman
Transportation Co., 424 U.S 747 770.
—<—<—-—— — == ——— - <_< ———_
(1976). As the Court noted in Franks:
The provisions of [Section 706(g)] are
intended to give the courts wide
discretion exercising that equitable
power to fashion the most complete
relief possible.' [424 U.S at 764.
quoting from legislative history to
- 3e -
the 1972 amendments to Title VII,
118 Cong, Rec. 7168 (1972) 15/]
Each of the nine appellate courts
which have confronted the issue has held
that race conscious relief, including
numerical goals, is appropriate, and may be
necessary, under Section 706(g) and/or the
Executive Order to correct the effects of
racially discriminatory employment prac-
tices. E.g., United States v-
ee ee ee
976); Contractors Association of Eastern
Pennsylvania v. Secretary of Labor, 442
F.2d 159 (3d Cir.), cert. denied, 404
U.S. 854 (1971); Boston Chapter NAACP v.
Beecher, 504 F.2d 1017 (1st Cir. 1974),
15/ Reprinted in Legislative History of
the Equal Employment Opportunity Act of
1972, Senate Committee on Labor and Public
Welfare, Subcommittee on Labor, at 1848
(1972).
- 4e -
cert. denied, 421 U.S. 910 (1975); Asso-
ciated General Contractors of Massachusetts
v. Altshuler, 490 F.2d 9 (1st Cir. 1973),
cert. denied, 416 U.S. 957 (1974); Rios v.
Enterprise Association Steamfitters Local
638, 501 F.2d 622 (2d Cir. 1974); Patterson
v. American Tobacco Co., 535 F.2d 257 (4th
Cir. 1976); Morrow v. Crisler, 491 F.2d
1053 (5th Cir.) (en banc), cert. denied,
419 U.S. 895 (1974); NAACP and United
States v. Allen, 493 F.2d 614 (5th Cir.
1974); United States v. Local 212 Interna-
tional Brotherhood of Electrical Workers,
472 F.2d 634 (6th Cir. 1973); United States
v. Masonry Contractors Association of
Memphis, 497 F.2d 871 (6th Cir. 1974);
Southern Iliinois Builders Association v.
Ogilvie, 471 F.2d 680 (7th Cir. 1972);
Crockett v. Green, 534 F.2d 715 (7th Cir.
1976); United States v. N.L. Industries,
479 F.2d 354 (8th Cir. 1973); United States
- Se -
v. Ironworkers Local 86, 443 F.2d 544 (9th
Cir.), cert. denied, 404 U.S. 980 (1971).
The broad relief provided in such cases is
designed to rectify discrimination against
a class, and is not limited to identified
victims of past discrimination.
The broad remedial authority of the
courts under Section 706(g) and the Execu-
tive Order -- and specifically the author-
ity to impose numerical relief -- was
brought before the Congress in the course
of the consideration of the 1972 amendments
to Title VII. Senator Ervin introduced an
amendment which would have prohibited
federal agencies and officials from requir-.
ing “discrimination in reverse" by employ-
ing “either fixed or variable numbers,
proportions, percentages, quotas or goals."
118 Cong. Rec. 1663 (1972) (Leg. History,
Supra, at 1042, 1044). His amendment was
addressed to Title VII and Executive Order
- 6e -
11246, and was designed to limit the
authority of the EEOC and the Secretary of
Labor. Ibid. His amendment was opposed by
Senator Williams, the floor manager, and by
the minority floor manager, Senator Javits,
who relied upon and had printed in the
Congressional Record two decisions-- this
Court's decision in Contractors Association
of Eastern Pennsylvania v. Secretary of
Labor, supra, and United States v. Iron-
workers Local 6&6, supra, 118 Cong. Rec.
1665 (1972)(Leg. History, supra, at 1048).
In opposing the amendment, Senator Javits
argued that it would not only destroy the
affirmative action concepts under Executive
Order 11246, but would also “deprive the
courts of the opportunity to order affirma-
tive action under Title VII of the type
which they have sustained in order to
correct a history of unjust and illegal
discrimination..." 118 Cong. Rec. 1665
- Ve -
(1972) (Leg. History, supra, at 1048).
Similarly, Senator Williams argued that he
was
»--- desperately afraid -- that this
amendment would strip Title VII of the
Civil Rights Act of 1964 of all its
basic fibre. It can be read to
deprive even the courts of the
power to remedy clearly proven cases
of discrimination. [118 Cong. Rec.
1676 (Leg. History, supra, at 1072)]
Senator Ervin's amendment was defeated
that day by a vote of 22 to 44. 118 Cong.
Rec. 1676 (Leg. History, supra, at 1074).
Thus, we have very clear legislaive history
not only of Congressional ratification
and approproval of the broad remedial
authority under Title VII and Executive
Order 11246, but also clear ratification
and approval of the authority to order
numerical relief.
In the recent case of United States v.
International Union of Elevator Construc-
tors, Local Union No. 5, 538 F.2d 1012 (3rd
@- Be -
Cir. 1976), this Court rejected contentions
that the imposition of affirmative remedies
benefiting individuals who may not them-
selves have been victims of the unlawful
discrimination were limited by Section
703(4).” In so doing, the Court noted
the “virtual unanimity in the lower federal
courts that § 703(j) does not in this
respect limit tue courts’ remedial powers.”
538 F.2d at 1019. It also noted that in
amending Title VII in 1972 Congress had
indicated approval of the broad remedial
authority of the courts, including the
power to impose rumerical remedies. The
16/ Although the Court's analsyis was
directed to Section 703(j), its analysis is
also dispositive of contentions that the
relief in this case is barred by Section
703(a). See also Contractors Association
of Eastern Penne lvania v. Secretary o
page su ray
ch 42 U.S.C. §§ 2000e-2(a) and
Hoag Hag set out in the appendix to this
brief.)
- Je -
Court pointed out that in the section-by-
iv/
section analysis of the 1972 amendments,
Congress had expressed the view that:
In any area where the new law does not
address itself, or in any areas
where a specific contrary intention is
not indicated, it was assumed that the
present case law as developed by the
courts would continue to govern the
applicability and construction of
Title VII.
It also referred to the fact that Congress
had rejected two amendments offered by
Senator Ervin to forbid the courts from
using numerical remedies to eliminate the
effects of past discrimination after
Senator Javits had cited the opinions in
—_————
17/ 118 Cong, Rec. 7166 (1972) (Leg,
History, supra, at 1844.)
- 10e -
U.S. . 96 &.Ct. 2586 (1976), the
Court in Elevator Constructors found this
"unusually clear evidence that Congress
approved the pre-1972 federal court inter-
pretation of the scope of Section 706(g)
remedial powers.” 538 F.2d at 1012-13.
IBEW attacks the Court's analysis of
the legislative history in the Elevator
Constructors decision. As to one of the
amendments offered by Senator Ervin, it
argues that the amendment was primarily
aimed at restricting the Office of Federal
Contract Compliance; that in the two
decisions cited by Senator Javits, the
courts had found the remedies not to be
preferential quotas; and that, because it
cannot be determined why the amendment ws
defeated, the defeat cannot be read as a
congressional approval of those decisions.
Of the second amendment, IBEW contends that
it had only been intended to extend the
- lle -
preferential treatment prohibition of
Section 703(j) to the OFCC. However, the
debate over the former amendment made it
clear that what was deemed to be at issue
was both the requiring of affirmative
action under Executive Order 11246 and the
ordering of quota remedies by courts to
overcome the effects of past discrimina-
tion. (See Leg. History, supra, 1046,
187
1048, 1072).
18/ i» arguing against the adoption of the
Ervin amendment, Senator Javits stated, 118
Cong. Rec. 1665 (Leg. History, supra, at
1048):
I would also like to cite in that
regard the opinion in the United
States v. Ironworkers Local No. 66,
F. , decide n the Ninth
Circuit Court of Appeals as recently
as May of 1971, in which the court
held, in a Title VII “pattern or
practice" case, that there was an
affirmative duty for minority recruit-
ment where it was shown that there was
past discrimination which now required
correction, and that the court could
order that correction affirmatively
- l2e -
IBEW'S contention that the value of
the legislative history is diminished be-
cause in the two cases called to Congress'
attention the remedies were found not to
constitute preferential quotas (IBEW brief
pp. 42-43) is unpersuasive. Any such
Statements in those decisions merely con-
18/ continued
without violating section 703(})
related to preferential treatment of
individuals of any group, and so
forth, where there had been il-
legality. The court would not allow a
respondent to profit from his own
illegality under cover of section
703(j).
Now, Mr. president, I am told,
and I believe the information to be
reliable, that under the decision made
last week by Judge Bonsal in New
York, in the Steamfitters case, an
affirmative order was actually entered
requiring a union local to take in a
given number of minority-group ap-
prentices.
What this amendment seeks to do
is to undo the Philadelphia plan and
those court decisions. Incidentally,
I take great pride in the fact that
when the legality of the Philadelphia
- l3e -
stituted the legal conclusion that the
relief was lawful. See, eg., the aspects
of the relief at issue in the Ironworkers
case in the district court opinion, 315
me ea ee ee ee
18/
continued
plan was argued here, and we had an
opinion of the Attorney General which
held it lawful pitted against an
opinion of the Comptroller General's
Office which held it unlawful. I
think I was the principal Senator
who sustained the doctrine of legal-
ity. And I am very grateful, natu-
rally, that the courts took that
view.
So, there I believe that the
amendment does two things, both of
which should be equally rejected.
First. it would undercut the
whole concept of affirmative action
as developed under Executive Order
11246 and thus preclude Philadelphia
type plans.
Second the amendment, in addi-
tion to dismantling the Executive
order program, would deprive the
courts of the opportu:ity to order
affirmative action under Title VII of
the type which they have sustained in
order to correct a history of unjust
and illegal discrimination in aloy-
ment and sparaie Pater aiimeania the
effect to correct these injustices.
(emphasis supplied).
- l4e -
FP. Supp. 1212, 1247 (W.D. Wash. 1970). The
legislative history makes clear that
congress was not misled as to what was in
fact at issue.
It is true, as IBEW notes, that it
can never be completely determined why
a particular amendment was defeated.
However, that does not militate against a
rule of statutory construction whereby the
most logical inference is drawn, especially
where the vote is overwhelming. The
overwhelming rejection of the Ervin amend-
ment was properly read by the Court in
Elevator Constructors as a clear indication
that Congress did not intend Section 703(a)
19/
or (j) to be a bar to such relief.
139 It is also noteworthy that Congress in
72 in fact broadened the remedial lan-
guage of Section 706(g) to include the
words “or any other equitable relief as the
court deems appropriate." In light of that
fact, there is no merit in IBEW's attempt
to rely on H. K. Porter v. NLRB, 397 U.S.
'
hee
- 15e -
19/ continued
99 (1970) (IBEW brief, pp. 35-36), which
held that the Board could not, even for
remedial purposes, order the parties to
reach agreement since Congress had never
given the Board the authority to order
employers and unions to agree. Here the
district courts, subject only to consti-
tutional limitations, have the broadest
possible power to fashion relief.
IBEW (brief, pp. 31-32) places re-
liance on the last sentence of Section
706(g), which reads:
No order of the courts shall
require the admission or rein-
Statement of an individual as a
member of a union, or the hiring,
reinstatement, or promotion of an
individual as an employee, or
the payment tc him of any back
pay, if such individual was
refused admission, suspended,
Or expelled., or was refused
employment or advancement or was
suspended or dischaged for any
reason other than discrimination
on account of race, color,
religion, sex, or national origin
or in violation of section 704(a).
As noted above with respect to Sections
703(a) and (j), this Court and eight other
courts of appeals have found that language
not to be a bar to affirmative numerical
remedies.
a
- l6e -
The appellants efforts to bring into
operation the language of Sections 703(a)
or (j) to bar the relief in this case
because here, unlike the case of hiring
goals, the expectation of incumbents are
affected are without merit. As discussed
infra, pp. 34-35, the Elevator Constructors
case did involve relief affecting the
interests of incumbents. Morover, it is
Simply impossible to read the language of
those sections to permit relief in the
hiring case while barring it in the case of
promotions.
CWA and IBEW also contend that the
override aspect of the decree and supple-
mental order is barred by Section 703(h) of
20/
Title VII. §Both find support in Franks
20/ Section 703(h), 42 U.S.C. § 2000e-
2(h), is set out in the appendix to this
brief.
cf
*
- 1Je -
v, Bowman Transportation Co, 424 U.S. 747
(1976), Rather than supporting their
position however, the Franks decision
disposes of any contention that Section
703(h), restricts the relief available to
correct prior discriminatory practices. In
holding that Section 703(h) could not bar
the grant of retroactive seniority to
remedy discrimination the Court in Franks
—_—_—_—
reasoned (424 U.S. at 758-59);
On its face, § 703(h) appears to
be only a definitional provision,
as with the other provisions of
§ 703 subsection (h) delineates
which employment practices are
illegal and thereby prohibited
and which are not. Section
703(h) certainly does not ex-
pressly purport to qualify or
proscribe relief otherwise
appropriate under the remedial
provisions of Title VII, §706(g),
42 U.S.C. § 2000e-5(g), in
circumstances where an illegal
discriminatory act or practice is
found. Further, the legislative
history of § 703(h) plainly
negates i*s reading as limiting or
a ee
- 18e -
qualifying the relief authorized
under §706(g). 21/
21/ After examining the legislative
history,
761-762).
the Court concluded (id.. at
Accordingly, whatever the exact
meaning and scope of § 703(h) in
light of its unusual legislative
history and the absence of
the usual legislative materials.
see Vaas. [Title VII. Legisla-
tive History, 7 B C. Ind. & Comm.
L. Rev. 431 (1966)] at 457-458,
it is apparent that the thrust of
the section is directed towad
defining what is and what is
not an illegal discriminatory
practice in instances in which
the post-Act operation of a
seniority system is challenged
as perpetuating the effects of
discrimination occurring prior to
the effective date of the Act.
There is no indication in the
legislative materials that
§703(h) was intended to modify or
restrict relief otherwise appro-
priate once an illegal discrimi-
natory practice occuring after
the effective date of the Act
is proved--as in the instant
case, a discriminatory refusal to
hire.
(footnote omitted)
- 19e -
This Court so read the Franks decision in
its Elevator Constructors decision, supra,
stating (538 F.2d at 1019):
Local 5 contends, however, that
the enforcement provisions in
§ 706(g) are in effect limited by
the unlawful employment practices
prohibitions in §§703(h) and (j).
The short answer to that conten-
tion is that § 703 defines viola-
tions, not remedies. The section
binds employers and labor organi-
zations. It binds the court to
the extend that it curtails the
court's power to find a viola-
tion, but § 703 is simply inap-
plicable to the relief which may
be afforded once a violation has
been found. Thus a court could
not predicate a finding of viola-
tion upon the existence of a
bona fide seniority system such
as § 703(h) describes, or upon
the mere failure to institute an
affirmative action program of the
kind to which § 703(j) refers.
But the court's remedial powers
are not limited by these provi-
sions. That is made abundantly
clear by the holding in Franks v.
Bowman Transportation Co. supra,
that artificial seniority may,
pursuant to § 706(g), be awarded
as a remedy for past discrimina-
tion.
As discussed infra, pp. 33-34, this
decision was made in the context of relief
re
e..
. ,
_
Ny
yo wae
- 20e -
overriding the expectations of incumbents
in favor of minorities not identified as
victims of the prior discrimination. Thus
this Court must have read the Franks ruling
with respect to the reach of Section
703(h) as not limited to relief to identi-
able victims. This was a proper reading of
that decision. The Court held that Section
703(h) merely defined violations and was
not intended to permit seniority systems to
stand as a bar to appropriate Title VII
relief. There may be questions as to
whether relief to persons not individually
identified as victims is appropriate but
there is simply no basis in the statute for
reading 703(h) as a limitation on the
authority to grant relief if otherwise
appropriate.
CWA and IBEW also seek to rely on this
Court's original decision in Jersey Central
Power & Light Co. v. Local 327, IBEW, 508
- 2le -
F.2d 687 (3d Cir. 1975), and the subsequent
per curiam decision remanding the cause to
the district court, _ F.2d __ i. 13
PFP Cases 762 (3d Cir. 1976), after the
Supreme Court had sent the case back for
reconsideration in light of Franks, U.S.
, 96 S.Ct. 2196 (CWA brief pp. 21-32,
IBEW brief, pp. 51-53). As this Court
pointed out in Elevator constructors,
supra, 538 F.2d at 1020, the Jersey Central
decision “is not in point because it did
not deal with the scope of judicial remedy
afforded in 706(g) for a § 703 violation.”
The original opinion, dealing only with the
question of whether the use of plantwide
seniority to determine layoff status
violates public policy (as expressed in
Title VII), held that Section 703(h)
precluded a finding of a Titie VII viola-
tion even where such layoffs perpetuated
past discrimination. 508 F.2d at 704-711.
Lo as a
- 22e -
The Court's opinion on remand merely holds
that in light of Franks, layoffs of identi-
fied individuals who were shown to have
been the victims of hiring discrimination
would be a violation of Title VII, notwith-
standing the provisions of Section 703(h).
It is true that the Jersey Central
opinion on remand does appear to draw a
distinction between identified and non-
identified victims of previous discrimina-
tion. In the context of the layoff situa-
tion before the Court in that case and in
view of the emphasis in the original
opinion on the “intention to discriminate"
as the sole exception to the bona fides of
a company service seniority system (508
F.2d 711), that ¢istinction may have
validity. Where persons have lower senior-
ity because of a discriminatory refusal to
hire at an earlier date, the reduced
seniority is plainly the result of an
- 23e -
intention to discriminate; where an indi-
vidual was not a victim of hiring discrimi-
nation the lower seniority is not a result
of an intention to discriminate as to that
person. ae/ Whatever the merit of drawing
such a distinction in the Jersey Central
context, it is not inconsistent with the
Court's reading of Franks in Elevator
Constructors. Section 703(h) does not
apply at all with respect to the remedy
for past class discrimination which has
been carried into a seniority system.
There is thus no basis in Section 703(h)
for distinguishing between identifiable
victims and other members of the previously
disadvantaged group if group relief is
otherwise appropriate.
22/ Such an interpretation of 703(h) is
consistent with opinions of the Fourth
i PE ce
- 24e -
In sum, all of appellants' statutory
objections to the authority of the district
court to order the relief at issue in this
case are foreclosed by the legislative
history of the 1972 Act and the settled
law of this Circuit.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.