Amicus Curiae Brief — City of Chicago v. Billish

No. 93-4

Iu the Supreme Court of the United States

OCTOBER TERM, 1993

CITY OF CHICAGO, et al.,

. Petitioners,

EARL BILLISH, et al.,

Respondents.

RICHARD M. DALEY, et al.,

” Petitioners,

CHICAGO FIRE FIGHTERS UNION LOCAL No. 2. et al..,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF

THE CHICAGO LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW, INC.,

THE MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND,

THE NATIONAL WOMEN’S LAW CENTER,

WOMEN EMPLOYED,

THE WOMEN’S LEGAL DEFENSE FUND.

THE AMERICAN CIVIL LIBERTIES UNION

OF ILLINOIS,

THE CHICAGO AFRICAN-AMERICAN

FIREFIGHTERS LEAGUE,

THE CHICAGO COUNCIL OF LAWYERS,

CHICAGO WOMEN IN TRADES,

THE LATINO FIREFIGHTERS ASSOCIATION

OF CHICAGO, AND

THE NAACP CHICAGO SOUTH SIDE BRANCH

AS AMICI CURITAE IN SUPPORT OF PETITIONER

CYNTHIA A. WILSON lo MILY NICKLIN

CHICAGO LAWYERS’ COM MITTEI Counsel of Record for

For CIVIL RIGHTS UNDER Amict Curiae

LAW, INC. CAROLE A. CHENEY

185 North Wabash Avenue KIRKLAND & ELLIS

Suite 2110 ~00 East Randolph Drive

Chicago, Illinois 60601 Chicago, Illinois 60601

(312) 6380-9744 (312) 861-2000

Attorneys for Amici Curiae

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

Iu the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-4

CiTy OF CHICAGO, et al.,

Petitioners,

EARL BILLISH, et al.,

Respondents.

RICHARD M. DALEY, et al.,

. Petitioners,

CHICAGO FIRE FIGHTERS UNION LOCAL NO. 2, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2 of the Rules of this Court, amici

respectfully move for leave to file the attached brief

amicus curiae in support of petitioner. Petitioner City of

Chicago has consented to the filing of the brief. This

motion is necessary because the respondents have denied

consent.

The amici, national and local organizations whose

members are active in efforts to protect the civil rights

of people who historically have been victimized by dis-

crimination, have a strong interest in legal issues affecting

equal employment opportunities and in rectifying past dis-

crimination in this country through voluntary affirmative

action by private employers and governmental! entities.

The Chicago Lawyers’ Committee for Civil Rights Un-

der Law, Inc. (“Lawyers Committee”) is a non-profit

legal advocacy organization founded in 196%. Since its

inception, the Lawyers’ Committee has enlisted the pro

bono services of many hundreds of attorneys from Chicago

law firms in addressing a wide range of legal problems,

including employment discrimination. The Lawyers’ Com-

mittee has strong interest in secing racial discrimination

eliminated and. where appropriate, remedied with affirma-

tive action efforts.

The Mexican American Legal Defense and Educational

Fund (“MALDEF’) is a national non-profit civil rights

organization established in 1967. Its principal obiective

is to secure the civil rights of Latinos in the United States

through litigation and education. It has frequently repre-

sented plaintiffs and intervenors in employment discrimi-

nation matters raising affirmative action issues, and has

appeared as an amicus in federal courts, including cases

before this Court.

The National Women’s Law Center (“Center”) is a

non-profit legal advocacy organization dedicated to the

advancement and protection of women’s rights and the

corresponding elimination of sex discrimination from all

facets of American life. Since its inception in 1972, the

Center has worked continuously to make the goal of equal

opportunity for women in the workplace a reality. The

implementation of remedial efforts by employers to rectify

prior discrimination is essential to this goal. Consequently,

the Center has a deep and abiding interest in ensuring

that voluntary and appropriate affirmative action plans

are adequately protected under the law.

Women Employed is a national membership association

of 2.000 working women based in Chicago. Since 1973,

the organization has assisted thousands of working women

with sex discrimination problems, monitored the perform-

ance of equal opportunity enforcement agencies, and de-

veloped proposals for improving enforcement efforts.

Women Employed has found affirmative action measures

to be a necessary tool in remedying sex discrimination.

The Women’s Legal Defense Fund (“WLDF”) is a

non-profit national advocacy organization founded in 1971

to advance the rights of women in the areas of work and

family. WLDF works to challenge gender discrimination

in the workplace through litigation of significant sex dis-

crimination cases, public education, and advocacy for

improvements in the equal employment opportunity laws

and their interpretation before Congress and the federal

agencies charged with their enforcement. WLDF has

placed special emphasis on equal employment opportunity

for women of color, who often face job discrimination

based on both race and gender.

The American Civil Liberties Union of Iilinois

(“ACLU’’) is a statewide, non-profit, nonparitsan organi-

zation of nearly 14,000 members. It is an affiliate of its

national parent organization, the American Civil Liber-

ties Union. Since its founding in 1920, the ACLU has

been dedicated to preserving and defending the principles

of liberty and equality embodied in the Constitution and

the nation’s civil rights laws.

The Chicago African-American Firefighters League was

established in 1967 to improve the professional compe-

tency of firefighters and to promote justice for its mem-

bership. The League has been actively involved in

employment discrimination litigation and the enforcement

of consent decrees aimed at desegregation of the fire

service. The League is concerned that the overly restric-

tive interpretation of the consent decree in this case will

negatively affect strides achieved by minorities in the

1980s.

The Chicago Council of Lawyers (“Council”) is a pub-

lic interest bar association of more than 1,200 members.

It was found: 4 in 1969 to work toward a system of justice

that 1s fair to all. The Council evaluates state and federal

judges, files briefs amicus curiae in cases affecting the

public interest, authors publications to educate lawyers

and the public at large about our legal system, and issues

recommendations for improving the ways in which courts

and government agencies operate.

Chicago Women in Trades (“CWIT”) is an organiza-

tion that assists tradeswomen and women seeking entry

into nontraditional blue-collar employment. CWIT works

to increase the number of women in the trades, and advo-

cates for equal employment opportunities. CWIT has

found affirmative action measures to be a necessary rem-

edy for many women in nontraditional jobs who have

long been victims of gender discrimination.

The Latino Firefighters Association of Chicago seeks

to ensure that Latino firefighters are provided equal em-

ployment opportunities. The Association believes that

measures taken to ameliorate prior discriminatory prac-

tices are a vital means for achieving equal employment, and

therefore has a strong interest in the continued viability of

legitimate affirmative action undertaken by employers.

The NAACP Chicago South Side Branch is a branch

of the National Association for the Advancement of

Colored People (“NAACP”), the nation’s oldest and larg-

est civil rights organization. The NAACP was established

in 1909 to empower and protect African-Americans and

other minorities under the Constitution through principles

of equal justice under law. The NAACP has been instru-

mental in securing passage of all civil rights legislation

in this century, and remains committed to the full enforce-

ment of these laws.

This case is of great interest to amici because the de-

cision of the United States Court of Appeals for the

Seventh Circuit in City of Chicago v. Billish. 989 F.2d

890 (7th Cir. 1993) (en banc), seriously impairs an em-

ployer’s ability to engage in voluntary remedial efforts to

eradicate past discrimination. A decision, like the one

below, that increases the vulnerability of consent decrees

and creates unrealistic evidentiary hurdles for employers

seeking to implement necessary remedial measures will

limit the employment opportunities available to women

and non-whites in this country.

Many of the amici organizations have been litigating

against employment discrimination for many decades,

and seek to ensure that work forces, both public and pri-

vate, end discriminatory practices and rectify prior dis-

crimination. Voluntary affirmative action will be signifi-

cantly impeded if employers must satisfy the rigid, ex-

traordinary strictures established by the en banc Seventh

Circuit in this case.

Because the issues presented by this case are of excep-

tional importance to amici and their members, and _ be-

cause amicis perspective may help illuminate the sig-

nificant and disturbing implications of the court of ap-

peals’ decision, amici respectfully move for leave to file

the attached brief in support of petitioner.

Respectfully submitted,

CYNTHIA A. WILSON EMILY NICKLIN

CHICAGO LAWYERS’ COMMITTEE Counsel of Record for

FoR CIVIL RIGHTS UNDER Amici Curiae

LAW, INC. CAROLE A. CHENEY

185 North Wabash Avenue KIRKLAND & ELLIS

Suite 2110 200 East Randolph Drive

Chicago, Illinois 60601 Chicago, Illinois 60601

(312) 630-9744 (312) 861-2000

Attorneys for Amici Curiae

August 18, 1993

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................. dchactdnpynsacniavnvenaee

INTEREST OF THE AMICI CURIAE ................. pesanebinn

NRC

PRTIAIR I nn ots aehieade aban daademaaininatemea

)

Il.

EMPLOYERS WILL BE DISSUADED FROM

VOLUNTARILY REMEDYING PRIOR DIS-

CRIMINATION IF THEY CANNOT RELY

ON STATISTICALLY SIGNIFICANT RACIAL

DISPARITIES AS A BASIS FOR IMPLE-

MENTING REMEDIAL MEASURES ...............

A. No Employer Should Be Forced To Admit

Liability To Engage In Affirmative Action,

Particularly Where The Employer Is A Gov-

ernmental Entity With A Demonstrated Rec-

ord Of Prior Discrimination ........00002220022000.....

B. Evidence Of Statistically Significant Racial

Disparities Should Not Be Disregarded

Merely Because The Defendant Has Not

Disproven All Possible Nondiscriminatory

Explanations For Those Disparities ...............

GOVERNMENTAL EMPLOYERS WILL BE

DETERRED FROM SETTLING’ CIVIL

RIGHTS CASES IF CONSENT DECREES

ARE IRRELEVANT IN ASSESSING

WHETHER AN EMPLOYER HAS A STRONG

BASIS IN EVIDENCE FOR ENGAGING IN

REMEDIAL EFFORTS TO RECTIFY PRIOR

SIERRA OU IT ccsecccssuiincantitulanintaiaueastaauisdeatabinted

CONCLUSION ................. selcims

(i)

12

15

ii

TABLE OF AUTHORITIES

Cases Page

Albemarle Paper Co. v. Moody, 422 U.S. 405

SE eretn te aaae cial a eee tae pect oral Deno. 11

Castaneda v. Partida, 4830 U.S. 482 (1976) 9

City of Richmond v. J.A. Croson Co., 488 U.S. 469

SE teed cseakates cseeess Sica a ae

Cygnar v. City of Chicago, 865 F.: Od 827 (7th Cir.

RU ater recent athena Cte ne at / ShTe pie a 7

Hazelwood School Dist. v. United States, 4833 U.S.

AR: 3 FER ema Dake eee Maia ate SEPP ARACTE 5,9

Johnson v. Transportation Agency, Santa Clara

County, 480 U.S. 616 (1987) ......000 5, 6,13

Local 93, Int'l Ass’n of Firefighters v. Cleveland,

a ae UG : | Seana eae eae eee ane OTC) 6, 13, 14

Martin v. Wilks, 499 U.S. 755 (1989) cect taal 12

Officers for Justice v. Civil Serv. Comm’n, 979 F.2d

721 (9th Cir. 1992), cert. denied, 113 S. Ct. 1645

ES) RA eae ce itera nate am eRe N ie ae ALi Me RON eR 5

Peightal v. Metropolitan Dade County, 940 F.2d

1394 (11th Cir. 1991), cert. denied, 112 S. Ct.

I Se a ea 5

Reagents of the Univ. of Calif. v. Bakke, 438 U.S.

Ek) Set RRR OTe E AAT. AONE ENN 14

Roberts v. United States Jaycees, 468 U .S. 609

Se ARR AL AER Tia ED AR SO Hie te Me aS OEE SEIS 8h Or CE 10

St. Mary’s Honor Ctr. v. Hicks, 118 S. Ct. 2742

Bo RR I Are Rat Ps Dal eee mea SPONSE aT RONG OTE 5

United Black Firefight ers Ass’n v. City of Akron,

vi0 £20 Goo (6th Cir. 1982) ..............:.................. 5

United States v. City of Alexandria, 614 F. 2d 1358

(5th Cir. 1980) ........ BOT Re RA EU CoE Lhe 2

United States v. City of Chicago, 411 F. Supp. 218

(N.D. Ill. 1976), aff'd in part and rev’d in part,

549 F.2d 415 (7th Cir.), cert. denied, 434 U.S.

a ia 6,9

United States v. Paradise, 480 U.S. 149 (1987)... 15

United Steelworkers v. Weber, 448 U.S. 193

SEE tei os nace acai ie 6,13

Walker v. City of Birmingham, 388 U.S. 307

RUNNIN cts et ccccephagdsssccanla numa tauantcakiamices cue aces 14

iii

TABLE OF AUTHORITIES—Continued

Page

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

PIE ciel. hsds ene treacle acnetamresneteaaue .......D, 10, 18, 14

Statutes and Legislative Materials

Be 0 Fe Ue ETE satan pcceteecieaasaaaieaabemaiaiadediaaennaudadaoaunm 14

ro Oe me Ee fe eS | ee ear 11

The Civil Rights Act of 1990: Hearings on H.R.

4000 Before the House Comm. on Education and

Labor and the Comm. on the Judiciary,

Subcomm. on Civil and Constitutional Rights,

Be Sn te MIN Stcocceseenedatanescenieumnicetnaadcnnon 3

Other Authorities

Lloyd C. Anderson, The Approval and Interpreta-

tion of Consent Decrees in Civil Rights Class

Action Litigation, 1983 U. Ill. L. Rev. 579

EMP UNUUE acdisiccoctihsSeuitans aetast ueaeoneeceastcesameeadeniiasnedaatandidion 13

Maimon Schwarzschild, Public Law by. Pr:vate

Bargain: Title VII Consent Decrees and the

Fairness of Negotiated Institutional Reform,

Re DP Ble FE | ccacaneiceiesecipeecaalagpetausandes 13

Official Report of the Task Force on Affirmative

Action—City of Chicago (Dec. 1985) —........00..... 8

In the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-4

CITY OF CHICAGO, et al.,

. Petitioners,

EARL BILLISH, et al.,

Respondents.

RICHARD M. DALEY, ef al.,

. Petitioners,

CHICAGO FIRE FIGHTERS UNION LOCAL No. 2, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF

THE CHICAGO LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW, INC.,

THE MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND,

THE NATIONAL WOMEN’S LAW CENTER,

WOMEN EMPLOYED,

THE WOMEN’S LEGAL DEFENSE FUND,

THE AMERICAN CIVIL LIBERTIES UNION

OF ILLINOIS,

THE CHICAGO AFRICAN-AMERICAN

FIREFIGHTERS LEAGUE,

THE CHICAGO COUNCIL OF LAWYERS,

CHICAGO WOMEN IN TRADES,

THE LATINO FIREFIGHTERS ASSOCIATION

OF CHICAGO, AND

THE NAACP CHICAGO SOUTH SIDE BRANCH

AS AMICI CURIAE IN SUPPORT OF PETITIONER

2

INTEREST OF THE AMICI CURIAE

The interest of amici is set forth in the motion ac-

companying this brief.

INTRODUCTION

In holding that the City of Chicago must go to trial to

defend measures undertaken to remedy prior discrimina-

tion, the en banc Seventh Circuit, in a 5-4 decision, re-

fused to consider critical evidence offered by the City.

The court’s stated rationales for disregarding the City’s

evidence—which included significant statistical racial dis-

parities among the ranks in the Chicago Fire Department

(“CFD”) and a consent decree with the United States

Department of Justice (“DOJ’)—are contrary to the

decisions of this Court and the law in other circuits. The

decision below will create prohibitive obstacles for em-

ployers embarked on affirmative action as a remedy for

prior discrimination and will dissuade others from even

trying to foster inclusion of minorities and women in

work forces from which they historically have been

excluded.

Discrimination in fire and police departments, such as

that documented on the part of the City of Chicago, is a

deeply entrenched practice nationwide. A study by the

United States Commission on Civil Rights in 1969, the

very era in which the City’s discriminatory policies were

first challenged by the DOJ, revealed rampant discrim-

ination by cities, particularly in fire and police depart-

ments: “Barriers to equal employment are greater in

police and fire departments than in any other area of

state and local government.” United States v. City

of Alexandria, 614 F.2d 1358, 1364 (Sth Cir. 1980)

(quoting U.S. Commision on Civil Rights, “For all the

people . . . By all the people,” 119-20 (1969)). Ac-

cording to the study, fire and police departments en-

gaged in exclusionary practices ranging from recruitment

to on-the-job harassment:

3

Negroes are not employed in significant numbers in

police and fire departments. . . . Negro policemen

and firemen hold almost no positions in the officer

ranks. . . . Police and fire departments have dis-

couraged minority persons from joining their ranks

by failure to recruit effectively and by permitting un-

equal treatment on the job including unequal pro-

motional opportunities, discriminatory job assign-

ments, and harassment by fellow workers. Minority

group hostility to police and fire departments also

deters recruitment, and this has not been overcome

by the departments.

Id.

All public employers play a unique rote in the eradi-

cation of discrimination. As the Mayor of Birmingham

recognized in his testimony on the Civil Rights Act

of 1990, “[e]radication of discrimination in the pub-

lic sector is of special importance, both because discrim-

ination in the public sector impugns a government’s in-

tent and ability to represent all citizens, and because

elimination of discrimination in the public sector fosters

the elimination of discrimination in the private sector.”

The Civil Rights Act of 1990: Hearings on H.R. 4000

Before the House Comm. on Education and Labor and

the Comm. on the Judiciary, Subcomm. on Civil and Con-

Sstitutional Rights, 101st Cong., 2d Sess. 286-87 (state-

ment of Richard Arrington, Jr:) (citing H.R. 92-238,

2 U.S. Code Cong. & Admin. News 2137, 2152-54,

2157-60 (1972) (legislative history of 1972 amendment

that brought public employers within coverage of Title

VII) ). The decision below rebukes such efforts, by im-

posing standards that go well beyond those required by

this Court in City of Richmond v. J.A. Croson Co., 488

U.S. 469 (1989).

The Seventh Circuit’s decision undercuts the ability of

all employers to engage in remedial efforts to ameliorate

prior discrimination, and creates disincentives to settle-

ment of employment discrimination litigation. Its effect

4

will be to discourage employers from voluntarily remedy-

ing prior discrimination. The majority opinion is a seri-

ous setback to civil rights organizations that have worked

to vindicate the rights of people who historically have

been harmed by discriminatory practices.

ARGUMENT

I. EMPLOYERS WILL BE DISSUADED FROM VOL-

UNTARILY REMEDYING PRIOR DISCRIMINA-

TION IF THEY CANNOT RELY ON STATISTI-

CALLY SIGNIFICANT RACIAL DISPARITIES AS

A BASIS FOR IMPLEMENTING REMEDIAL MEAS-

URES.

A public employer need not prove a case of intentional

discrimination against itself in order to withstand consti-

tutional scrutiny of its affirmative action efforts. Yet that

is what the en banc Seventh Circuit’s approach to statis-

tical evidence effectively requires. The court refused even

to consider relevant statistical evidence because it sup-

posedly pertained to discrimination that was “non-

actionable” under Title VII. Moreover, according to the

court, the statistics provided no evidence of intentional

discrimination, apparently because the employer did not

refute every conceivable non-discriminatory explanation

for its statistics through record evidence. This clearly is

not required by Croson, in which this Court reaffirmed

that statistical evidence such as that proffered by the City

is a powerful indication of discrimination. ~

A. No Employer Should Be Forced To Admit Liability

To Engage In Affirmative Action, Particularly

Where The Employer Is A Governmental Entity

With A Demonstrated Record Of Prior Discrimina-

tion.

The Seventh Circuit’s approach forces employers seek-

ing to comply with constitutional mandates to face an

untenable choice: admit prior intentional discrimination

or forgo all forms of voluntary affirmative action. In so

>

doing, the court turns on its head the principle that the

plaintiff continues to bear the ultimate burden of per-

suading the court that the defendant’s evidence does not

Support an inference of prior discrimination, see Wygant

v. Jackson Bd. of Educ., 476 U.S. 267, 277-78 (1986)

(plurality opinion); id. at 292-93 (O’Connor, J., con-

curring in part and concurring in judgment); see also

St. Mary’s Honor Ctr. v. Hicks, 113 S. Ct. 2742 (1993),

by effectively shifting the burden of proof to the em-

ployer to prove its own intentional discrimination as the

only permissible means to support a remedial purpose.

Employers rarely will admit that they have engaged in

intentional discrimination. This is the very reason that

Statistical evidence is so essential. It has been used for

years, with this Court’s approval, to evaluate employment

practices in the absence of direct proof of intentional dis-

crimination. See Croson, 488 U.S. at 500-01 (citing

Hazelwood Sch. Dist. v. United States, 433 U.S. 299,

307-08 (1977)); id. at 509."

Moreover, no employer should have to prove a case

against itself in order to engage in efforts to rectify prior

discrimination. Indeed, this Court has disavowed such a

requirement. See Croson, 488 U.S. at 500 (strong basis

in evidence supporting remedial action may be shown by

something “approaching a prima facie case of constitu-

tional or statutory violation”); Wygant, 476 U.S. at 290

(O’Connor, J., concurring in part and concurring in judg-

ment).* This Court has recognized that such a require-

1 Following Croson, numerous circuits likewise have reaffirmed

the relevance of statistical evidence in determining the existence

of a compelling purpose. See, e.g., Officers for Justice v. Civil Serv.

Comm’n, 979 F.2d 721, 725 (9th Cir. 1992), cert. denied, 113 S. Ct.

1645 (1993); United Black Firefighters Ass’n v. City of Akron,

976 F.2d 999, 1011 (6th Cir. 1992); Peightal v. Metropolitan Dade

County, 940 F.2d 1894 (11th Cir. 1991), cert. denied, 112 S. Ct.

969 (1992).

2This Court has also expressly rejected such a requirement in

the Title VII context. See Johnson v. Transportation Agency,

6

ment would have dangerous ramifications, particularly

since a specific admission of past discrimination could

expose governmental employers—and, as a result, tax-

payers—to liability in damages. See, e.g., Johnson v.

Transportation Agency, Santa Clara County, 480 USS.

616, 630 & n.8 (1987); see also Local 93, Int'l Assn

of Firefighters v. Cleveland, 478 U.S. 501, 515 (1986).

The voluntary efforts undertaken by the government of

a diverse city to incorporate residents who have long been

victims of exclusionary policies and practices into its work

force should not be stymied by unreasonable and unnec-

essary burdens.’ Croson expressly contemplates affirma-

tive action measures based on a factual predicate such as

that established by the City in this case. See 488 U.S.

at 509. The City of Chicago has an unfortunate history

of employment discrimination against minorities. See,

e.g., United States v. City of Chicago, 411 F. Supp. 218

(N.D. Ill. 1976) (Chicago Police Department guilty of

race and sex discrimination in violation of Title VII),

aff'd in part and rev'd in part, 549 F.2d 415 (7th Cir.),

cert. denied, 434 U.S. 875 (1977). This history, plus

the City’s statistical evidence, leaves no doubt that the

City’s remedial efforts were entirely appropriate. Croson,

488 U.S. at 509 (“Nothing we say today precludes a

state or local entity from taking action to rectify the

effects of identified discrimination within its juris-

diction.” ).

Santa Clara County, 480 U.S. 616, 680 & n.8 (1986); see also

United Steelworkers v. Weber, 443 U.S. 193, 209 (1979); id. at

212 (to justify adoption of an affirmative action plan in that

context, an employer need not point to its own prior discriminatory

practices, nor even to evidence of an “arguable violation” on its

part; rather, it need point only to a “conspicuous ... imbalance in

traditionally segregated job categories”) (Blackmun, J., concur-

ring).

3 According to 1990 census figures, the City of Chicago’s popula-

tion is 37.9 percent white, 38.5 percent African-American, 19.6

percent Latino, and 3.8 percent other.

7

Although the en banc Seventh Circuit took “judicial

notice” of cases involving allegations that the City en-

gaged in reverse discrimination, see Pet. App. 10a (citing

cases),* the court failed to acknowledge its own prior

decisions in which the City was found to have discrim-

inated against minorities, or studies of the City’s hiring

practices that establish a pattern of discrimination. A

1985 task force charged with analyzing prior discrimina-

tion by the City found “a history of exclusionary employ-

ment practices” against minorities and women, noting that

hiring was “‘a closed system” and that promotions “were

given on a preferential basis”:

The dominance of white males in higher paid job

categories can be attributed to the closed personnel

system utilized in the past. The application process

was a closed system and in some cases, the Depart-

ment of Personnel was bypassed completely. Recruit-

ment of minorities and women was minimal at best.

In addition, promotions were given on a preferential

basis, and all employees were not given opportunities

to apply and be considered for new positions... .

The Task Force on Affirmative Action concludes

that the personnel practices of the City of Chicago

have had a negative effect on the opportunities of

minorities and women for employment and advance-

ment in the City’s workforce. There is a history of

exclusionary employment practices and underutiliza-

tion of minorities and women in several of the occu-

pational categories and departments within the City.

4The majority suggests that the City of Chicago “under the

Washington administration could hardly be thought insensitive to

the interests of minority groups,” but only one of the cases cited

by the majority, Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir.

1989), contains any findings that the City engaged in discrimina-

tion against whites. In Cygnar, one official was found to have dis-

criminated against whites in making certain personnel decisions

in mid-1984. Surely that does not raise an issue of fact as to

whether other officials—Commissioners Hoskins and Galante—dis-

criminated against whites three years later.

8

This indicates that minorities and women have been

discriminated against and that equal employment op-

portunity has not been implemented and enforced.

Official Report of the Task Force on Affirmative Action

—City of Chicago (Dec. 1985).

The CFD’s failure to hire and promote minorities and

women clearly calls into question its ability to effectively

serve the community, particularly in a city as diverse as

Chicago. Indeed, City Personnel Commissioner Hoskins

acknowledged this as a relevant factor in the disputed

promotions, noting that the CFD “is a community ser-

vice organization which needs the trust and cooperation

of the community it serves. This provides an additional

reason why it is important to have a Fire Department

that is integrated at all levels.” Pet. App. 40a n.9. Un-

fortunately, the Seventh Circuit’s opinion will dissuade

public employers, such as the City of Chicago, from act-

ing upon this recognized need to include all citizens in

the work forces of entities charged with the public trust.

B. Evidence Of Statistically Significant Racial] Dis-

parities Should Not Be Disregarded Merely Because

The Defendant Has Not Disproven All Possible Non-

discriminatory Explanations For Those Disparities.

The majority’s willingness to cite cases alleging reverse

discrimination while ignoring the backdrop of the City’s

prior discrimination is particularly troubling because the

court engaged in speculation to refute the evidence prof-

fered by the City to support its remedial efforts. When

Commissioner Hoskins requested the affirmative action

promotions at issue in June 1987, 11% of the engineers

were minorities, compared to 29.2% of the firefighters,

and 3.6% of the captains were minorities, compared to

13.6% of the lieutenants. See Pet. App. 96a-97a. The

City’s uncontradicted evidence established that the dif-

ference between the expected and actual percentage of

minority engineers was 8.7 standard deviations, and that

9

the difference between the expected and actual percentage

of minority captains was 3.96 standard deviations. Id.

at 97a. These differences plainly were statistically signifi-

cant. See Hazelwood, 433 U.S. at 309 n.14; Castaneda

v. Partida, 430 U.S. 482, 496-97 n.17 (1976). The court

dismissed this statistical evidence on the ground that the

disparity could have been based on pre-1972 practices—

which, since undertaken by a public employer, were not

yet actionable under Title VII.°

The court’s approach is perverse from a policy per-

spective and is contrary to the law. First, the mere fact

that the perpetrator of discrimination happened to be a

public, rather than private, employer whose actions prior

to 1972 were not covered by Title VII should not affect

its ability to remedy past discrimination. If prior dis-

criminatory practices are the cause of an existing signifi-

cant statistical disparity—regardless of whether those dis-

criminatory practices had been within the compass of

Title VII when they occurred—the employer should be

permitted to remedy that disparity. Indeed, the Seventh

Circuit has previously recognized that very principle. See

City of Chicago, 549 F.2d at 436 (“[E]ven though Title

VII did not become applicable to the City until 1972, the

court had an obligation to correct the present conse-

quences of discriminatory conduct that occurred before

that date.’’).

Second, notwithstanding the Seventh Circuit’s sugges-

tions, see Pet. App. 13a, Croson does not indicate that

5In wholly disregarding the City’s statistical evidence, the Sev-

enth Circuit also stated that there was “no evidence” that the City

had engaged in intentional discrimination in violation of the Con-

stitution prior to 1972. Pet. App. 13a. This reasoning is circular.

As the City explains in its petition, this Court has held that statisti-

cal evidence is relevant to the determination of whether intentional

discrimination has occurred. See Pet. 24-25. By rejecting the City’s

statistical evidence, the court precluded consideration of the very

evidence that could help establish that the City’s prior discrimina-

tory actions were indeed intentional,

10

‘only discrimination that has been proven unlawful may

be remedied. See 488 U.S. at 500; see also Wygant, 476

U.S. at 289-93 (O’Connor, J., concurring in part and

concurring in judgment).° Statistics such as those prof-

fered by the City, clearly reflecting unjustified exclu-

sionary practices, may appropriately be used in establish-

ing a strong basis for remedial action.

Given the court’s avowed emphasis on so-called “ac-

tionable” discrimination, it is particularly troubling that

the court gave short shrift to evidence pertaining to the

1985 engineer test that revealed a Title VII violation.

The uncontroverted evidence established that the 1985

engineer test had an adverse impact on African-Americans

and Latinos, and that the City was aware of this fact.

See Pet. App. 46a. Moreover, the record contained ex-

pert evidence supporting the City’s contention that the

examination could not have been validated for use in

strict rank order, thereby establishing that the City would

not be able to prove a legitimate job-related justification

for this adverse impact. See Pet. App. 99a; id. at 50a

(citing Barrett Aff. €€ 16, 17). Strict rank order use

of this test with an adverse impact that could not be val-

idated as job-related would certainly have constituted a

violation of Title VII. In light of this, the City departed

from strict rank order in making promotions.

In disregarding this evidence, the majority speculated—

with no record support—that “an alternative possibility

. is that the department was merely trying to curry

favor with Hispanics by promoting a Hispanic lieutenant

out of rank order,” Pet. App. 13a-14a, and that “[t]he

city’s grounds for rejecting the results of its test sound

like pretexts designed to give the city more freedom to

6 Indeed, state and local governments have a compelling interest

in ameliorating the effects of even entirely lawful, private dis-

crimination that prevents disadvantaged groups from obtaining

equal opportunities for economic and social advancements. See,

e.g., Roberts v. United States Jaycees, 468 U.S. 609, 625-26 (1984).

11

practice reverse discrimination by departing from rank

order fixed by nonbiased tests.” 7d. at 1la. The record

is clear, however, that strict rank order use of the promo-

tion list was no more valid than the mechanism selected

by the City—and that the latter had less adverse impact.

According to the EEOC Uniform Guidelines on Employee

Selection Procedures, when there are two equally valid

selection mechanisms, an employer is obligated to select

the one with the less adverse impact on minorities. See

29 C.F.R. § 1607.3(B) (1991).’ This requirement has

been vital in increasing employment opportunities to mem-

bers of traditionally disadvantaged groups, and its survival

is of critical importance to the effective enforcement of

the civil rights laws.

Blind to both the law and the facts by an unabashed

hostility to the concept of affirmative action, see, e.g.,

Pet. App. 2a-3a (cases “involve challenges to racial favor-

itism in promotions ... .”); id. at 14a (“[t]here is con-

cern and resentment about the use of policies of

affirmative action or (more bluntly) reverse discrimina-

tion... .’’), the en banc Seventh Circuit adopted a dis-

missive approach to the evidence that impaired the City’s

ability to demonstrate the factual basis for its remedial

efforts. Moreover, the court engaged in pure specula-

tion that required the City to refute every conceivable

nondiscriminatory rationale for its remedial actions. As

an en banc opinion, Billish will be the law in the Sev-

enth Circuit and will be persuasive authority in all cir-

cuits, despite its interlocutory nature. It establishes an

unsettling precedent that places an unreasonable burden

upon local governments and other employers seeking to

implement legitimate remedial measures to rectify prior

discrimination. Further review of the court’s treatment.

of statistical evidence is therefore warranted.

7 Indeed, failure to use selection criteria with the least discrimi-

natory impact may be evidence of pretext. See Albemarle Paper

Co. v. Moody, 422 U.S. 405, 486 (1975).

12

II. GOVERNMENTAL EMPLOYERS WILL BE DE-

TERRED FROM SETTLING CIVIL RIGHTS CASES

IF CONSENT DECREES ARE IRRELEVANT IN

ASSESSING WHETHER AN EMPLOYER HAS A

STRONG BASIS IN EVIDENCE FOR ENGAGING

IN REMEDIAL EFFORTS TO RECTIFY PRIOR

DISCRIMINATION.

Consent decrees have long played a vital role in the

resolution of employment discrimination disputes. Con-

sent decrees allow parties to fashion solutions that are

most appropriate and tailored to their specific needs, while

freeing judicial resources by removing complex cases

from the trial dockets—thereby benefiting litigants, the

public, and the federal courts. By pronouncing that con-

sent decrees are irrelevant in determining the constitu-

tionality of affirmative action measures, the decision below

threatens to severly undermine their utility as a remedial

tool. If employers cannot rely in later litigation on previ-

ously entered consent decrees and their litigation history

as factors in establishing a “strong basis in evidence”’ for

remedial action, there will be very little reason to enter

those decrees at all.

The consent decree in this case, obtained by the DOJ,

contained legal and factual underpinnings that strength-

ened the foundation of the City’s remedial efforts. The

Seventh Circuit majority, however, found the City’s con-

sent decree irrelevant both because the plaintiffs were

not parties to it, see Martin v. Wilks, 490 U.S. 755

(1989), and because it contained no specific judicial

findings that the particular remedies set forth in the

decree were necessary to remedy prior discrimination and

because it had not been subject to strict scrutiny when

approved. See Pet. App. 6a-7a.

In disregarding the consent decree because of a lack

of judicial findings, the Seventh Circuit has implicitly re-

quired that a decree must contain such findings before

it may be considered in assessing an employer’s basis for

13

engaging in affirmative action. This Court, however, has

declined to require such a judicial determination, see

Wygant, 476 U.S. at 289 (O’Connor, J., concurring in

part and concurring in judgment); ° United Steelworkers

v. Weber, 443 U.S. 193 (1979), for good reason: such

a requirement “‘would severely undermine public employ-

ers’ incentive to meet voluntarily their civil rights obliga-

tions.” Wygant, 477 U.S. at 290 (O’Connor, J., con-

curring in part and concurring in judgment). Many local

governments enter into consent decrees in large part to

avoid judicial findings pertaining to liability. One im-

portant purpose of settlements, including consent decrees,

is to avoid even the trial itself. “The parties would see

little advantage in compromise if they were required to

undergo a trial on the merits to obtain approval of the

settlement... .” Lloyd C. Anderson, The Approval and

Interpretation of Consent Decrees in Civil Rights Class

Action Litigation, 1983 U. Ill. L. Rev. 579, 586 (1983).

This Court has consistently emphasized that cooperative

settlement is a valuable tool in civil rights litigation. See,

e.g., Johnson, 480 U.S. at 630 & n.8; Local 93, 478 US.

at 515 (citing cases). Settlement “acts as a lubricant for

change. Structural reform can begin immediately and the

likelihood of compliance is greater than if a coercive

judicial decree is entered.” Anderson, supra, at 580.

Consent decrees provide a vital means for such reform

particularly where, as here, a governmental bureaucracy

is involved and resistance to judicially mandated efforts

could impede progress. See Maimon Schwarzschild, Pub-

lic Law by Private Bargain: Title VII Consent Decrees

and the Fairness of Negotiated Institutional Reform, 1984

Duke L.J. 897, 899.

8 As Justice O’Connor recognized in Wygant, “[a] violation of

federal statutory or constitutional requirements does not arise with

the making of a finding; it arises when the wrong is committed.”

Wygant, 476 U.S. at 289-90 (O’Connor, J., concurring in part and

concurring in judgment).

14

As amici note above, the present case is particularly

troubling because the defendant is a public employer

whose actions serve as an example to the community

at large and to private employers. ‘The value of volun-

tary compliance is doubly important when it is a public

employer that acts, both because of the example its volun-

tary assumption of responsibility sets and because the

remediation of governmental discrimination is of unique

importance.” Wygant, 476 at 290 (O’Connor, J., con-

curring in part and concurring in judgment) (citations

omitted) (quoting Regents of the Univ. of Calif. v.

Bakke, 438 U.S. 265, 364 (1978) (opinion of Brennan,

White, Marshall, and Blackmun, JJ.) ).

In finding the City’s consent decree wholly irrelevant

to the strong basis in evidence determination, the Seventh

Circuit also emphasized that the decree was entered into

prior to Croson. Such a criticism effectively precludes any

reliance on pre-Croson decrees. Yet the decree here re-

mained in effect after Croson. See Pet. App. 38a. n.8.

The City was therefore subject to a finding of contempt

for violation of it. See 18 U.S.C. § 401; Walker v. City

of Birmingham, 388 U.S. 307, 315-17 (1967). More-

over. as the Seventh Circuit panel opinion recognized,

the decree was entered into “only after extensive litiga-

tion with the DOJ” and a “realistic” assessment by the

City “that its policies violated the Constitution.” Pet.

App. 36a. The consent decree and its litigation history

clearly are relevant factors in evaluating whether the City

has established a strong basis for its remedial efforts,

regardless of whether the decree was entered prior to

Croson’s enunciation cf the strict scrutiny standard.

In rejecting the consent decree, the Seventh Circuit has

failed to recognize that both the United States and civil

rights plaintiffs have traditionally sought decrees that go

beyond merely requiring the defendant to cease its prior

discriminatory practices, and instead requir, race- and

gender-conscious affirmative action to redress prier dis-

crimination, See, e.g., Local 93, 478 U.S. at 516-17.

15

Amici and other plaintiffs negotiate specifically to obtain

such critical provisions, which are essential if an employ-

er’s work force is to begin to reflect the qualified work

force in the population rather than the prior discrimina-

tory practices. The Seventh Circuit has determined that

such hard-fought bargains are meaningless.

Given that all decrees entered by district courts are

subject to equal protection principles, see, e.g., United

States v. Paradise, 480 U.S. 149 (1987) (plurality opin-

ion), all employers, public and private, must worry about

the implications of this decision. Employers attempting

to satisfy consent decrees face severe consequences either

way under the Seventh Circuit’s approach—a finding of

contempt if they violate the decree, or protracted litiga-

tion in which they cannot rely on that decree if they

implement affirmative action pursuant to it that is later

challenged. The cumulative effect of the Seventh Circuit’s

treatment of consent decrees may well be to eliminate

employers’ incentives to enter into consent decrees, even in

the most egregious cases of discrimination, and to under-

mine significantly the utility of those decrees already in

existence, This Court’s review of such a radical rejection

of the most common device used to settle discrimination

cases is amply warranted.

CONCLUSION

For the reasons set forth above, amici request this

Court to grant the petition for the writ of certiorari.

Respectfully submitted,

CYNTHIA A, WILSON EMILY NICKLIN

CHICAGO LAWYERS’ COM MITTEE Counsel of Record for

For CIVIL RIGHTS UNDER Amici Curiae

LAW, INC. CAROLE A. CHENEY

185 North Wabash Avenue KIRKLAND & ELLIS

Suite 2110 200 East Randolph Drive

Chicago, Illinois 60601 Chicago, Illinois 60601

(312) 630-9744 (312) 861-2000

Attorneys for Amici Curiae

August 18, 1993