Firefighters Local Union No. 1784 v. Stotts Brief Amicus Curiae

    Nos. 82-206, 82-229

In the

Supreme (tart nf tl?e Mnitrti States
October Term , 1983

JU L  ! 0 1988
Firefighters Local Union No . 1784,

Petitioner,

■r,-A

I

Carl W. Stotts, et al.,
Respondents.

Memphis Fire Department, et al.,
Petitioners,

—v.—
Carl W. Stotts, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICUS CURIAE
FOR NATIONAL ORGANIZATION FOR WOMEN; 
AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; 
EQUAL RIGHTS ADVOCATES, INC.; LEAGUE OF 
WOMEN VOTERS OF THE UNITED STATES; NATIONAL 
CONFERENCE OF BLACK LAWYERS; NATIONAL 
WOMEN’S LAW CENTER; WOMEN EMPLOYED; AND 

WOMEN’S LEGAL DEFENSE FUND

Marsha Levick
legal DFrtH' JUPlTiJjl'ABlER

Counsel o f  Record 
~ N O W  Legal Defense and Education Fund

9' l.u":ON S 132 West 43rd Street 
HEW YORK, K  Y.NM0Wrk, New York 10036

(212) 354-1225

Attorneys fo r  Amici Curiae



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES.... .......  i

INTEREST AND DESCRIPTION OF
AMICI CURIAE.......    1
SUMMARY OF ARGUMENT..........   7

ARGUMENT..... ................... 10
I. THIS CASE RAISES ISSUES 

HAVING A SIGNIFICANT 
IMPACT ON WOMEN'S OPPOR­
TUNITIES TO BECOME ECO­
NOMICALLY SELF-
SUFFICIENT.............. 10

II. FEDERAL ANTI-DISCRIMINA­
TION POLICY REQUIRES 
EFFECTIVE REMEDIES FOR 
EMPLOYMENT DISCRIMINA­
TION BY GOVERNMENT 
EMPLOYERS..... . 25
A. The 1972 Amendments

to Title VII of the 
Civil Rights Act of 
1964 Were Enacted to 
Redress Widespread 
Employment Discrim­
ination In State and 
Local Government 
Employment....... . . 25

B. Government Employment 
Practices, Such As 
Seniority-Based Lay- 
Off Plans, Cannot Be 
Allowed To Frustrate



Efforts To Remedy 
Discrimination.....  29

1. The use of the 
"last hired-first 
fired" principle 
to reduce employ­
ment in times of 
economic recession 
has a dispropor­
tionate impact on 
minorities and
women..........  29

2. Courts must be free
to impose affirmative 
color-conscious or 
gender-conscious rem­
edies if they are to 
fully effectuate the 
broad public policy 
against employment 
discrimination.... 36

III. THE DISTRICT COURT'S ORDER 
WAS NOT AN ABUSE OF DIS­
CRETION AND SHOULD BE 
UPHELD.......... . 43

A. Equitable Relief Will 
Be Disturbed Only If 
It Constitutes An 
Abuse Of Discretion
By The Lower Court.. 43

B. The District Court's 
Order Was Grounded 
Upon Sufficient Evi­
dence of Discrimina­
tion And Therefore 
Was Not An Abuse of 
Discretion......... 46



c.

CONCLUSION.

The District Court, 
Pursuant To Its Duty 
To Enforce The Decree 
And Its Authority To 
Modify It In Light 
Of Changed Circum­
stances, Did Not 
Abuse Its Broad 
Equitable Powers.... 50

................. 57



TABLE OF AUTHORITIES

Cases: Rage:

Albemarle Paper Co. v. Moody,
. S "405 "(19 75)T777777. . . .  25 , 43

Alexander v. Gardner-Denver
Co. ,’ 413_U . 3 . 36.(1'974777....  26

Bolden v. Pennsylvania State 
Police, 73 F.R.D. 370 
TETD. Pa. 1976), affd,
578 F .2d 912 (3d Cir. 1978)... 54

Bridgeport Guardians Inc, v.
Members of the Bridgeport"
C .S . Comm' n , 482 17 2 d 1533 
T7d~Cir. 1973)................ 55

Brotherhood of Locomotive 
Sng in e e rs ' v . Miss bur i-~~
Kansas-Texas R.R. Co.,
163   43

Browder v. Director, 111. Dept. 
of Corrections, 434 UTS. 257 
-(T977T7. . .......     45

Brown v. Board of Ed., 349 U.S.
294 (1955). . 7777777. ..........  45

Brown v. Neeb, 644 F.2d 551
(6th Cir. 19 81)............... 53

Columbus Bd. of Ed. v. Penick,
443 U.S. 449 (1979).... ..7... 45

Detroit Police Officers Ass'n
Y; Young, 608 F .2d 671
T6th Cir. 1979), cert. denie_d,
452 U.S. 938 (198TT77........  55

i



TABLE OF AUTHORITIES--Continued

Cases: Page:

Franks v. Bowman Transpor-
tation Co., 424 U.S. 747 36, 37.
T1976).... .................... 45, 56,

57
Fullilove v. Klutznick, 448 U.S.

448 (19 80)777. . .'..'............ 41

Griggs v. Duke Power Co., 401 
"U.S. 424 (1971)...... ........  26

Hecht Co. v. Bowles, 321 U.S,
J2T~TTW0T777777............. 44

International Salt Co. v.
United States, 332 U.S. 392 
T O T 7 T ..... .T.................  44

Lemon v. Kurtzman, 411 U.S. 192
"(19 73)...... .7................ 43, 44,

54
McDonnell Douglas Corp. v.

Green ,~~4TT U.S. 792 (1973)___ 25

Milliken v. Bradley, 433 U.S.
267 (1977)..... ..............  55

Perrotte v. Percy, 489 F.Supo.
212 (E.D. WTscT 1980)..../.... 53

Regents of the Univ. of Calif.
v. Bakke, 438 U.S. 265 (1978). 41

Schaefer v. Tannian, 394 F.Supp. 12, 15, 
1128 (E.D. MTcTT 1974) ........  17, 54

Stotts v. Memphis Fire Depart- 
ment, 679 F.2d 541 (6th Cir.
1982).......................... 47, 48,

50

li



TABLE OF AUTHORITIES--Continued

Cases: Rage:

Swann v. Charlotte-Mecklenburg
■ ~ W r ^ F T d r r “?02~u7sT~T 43 , 44,

(1971)................   45, 55
System Fed'n Ho. 91, Ky. Emp.

Dept. v. Wright) 364 U.S. 642
(1961)...... .77........... . 44, 53

Teamsters v. United States, 431
— U. S . 324 T T T n J ~  777777. . . . . . 29,56

United Air Lines, Inc. v. Evans,
431 U.S'..553 (1977)........T7. 56

United States v. Armour Co.,
402 U.S. 673 (1981) 7.777..... 52

United States v. City of 
Alexandria, 614 F.2d 1358
(5th Cir. 1980)...........   15, 17,

49
United States v. City of 

Buffalo, 633 F.2d 643 
(2d Cir. 1980).............. 17

United States v. City of 
Chicago, 385 F.Supp. 543 
IT. D 111. 1974)......... . 12, 16

United States v. City of Miami,
614 F .2d 1322 (5th Cir.
1980).........................  49

United States v. City of 
Philadelphia’ 499 F.Supp.
1196 (E.D. Pa. 1980)........... 17

iii



TABLE OF AUTHORITIES--Continued

Cases: Page:

United States v. City of 
Yonkers, 80 Civ. 7407 
(S.D.N.Y. 1979)............... 16

United States v. Nassau County 
Police Dept.8 No. 76 C 1869 
(E . D .N . Y July 21, 1978).....  16

United States v. United Shoe 
~~CorpTT 391 U.S. J W J I 9 W ) --- 53
United Steelworkers of America 

v. Weber, 443 U.S. 193 
TT979) . .......................  25, 41

Codes Sc Statutes :

Exec. Order 11246, 30 Fed.
Reg. 12319 (1965) as amended
by Exec. Order 11375, 32
Fed. Reg. 14303 (1976)....--  30

42 U.S.C.A. §1981 (West 1981)... 30

42 U.S.C.A. §1983 (West 1981)... 30

42 U.S.C.A. §2000d, Title VI,
§601 of the Civil Rights Act 
of 1964 (West 1981) . ..........  30

42 U.S.C.A. §2000e et seq.,
Title VII of the Civil Rights
Act of 1964 as amended by the
Equal Employment Opportunity
Act of 1972 (West 1981)......  passim

IV



TABLE OF AUTHORITIES--Continued

Codes & Statutes: Page:

42 U.S.C.A. §6705 (f) (2) Public 
Works Employment Act 
(West 1983)...... . ...........  30

Studies, Pamphlets and
Periodicals•

Bureau of Labor Statistics,
U.S. Dept, of Labor, "Employ­
ment and Earnings" (March 
1982)........................

Bureau of Labor Statistics,
U.S. Dept, of Labor, "Employ­
ment in Perspective: Working
Women" (ReDort No. 544,
1978) ..../...................

Bureau of Labor Statistics,
U.S. Dept, of Labor, "News: 
Trends in Weekly and Hourly 
Earnings for Major Labor 
Force Groups,” (Nov. 2,
1977)........................

Bureau of Labor Statistics,
U.S. Dept, of Labor, "Per- 
spectives on Working Women" 
(1980) ............ ...........

Bureau of National Affairs, 
"Layoffs, Rifs, and EEC in 
the Public Sector: A BNA
Special Report" (Feb.
1982).... ....................

13, 14 
21

22

22

13, 20

33, 34 
35

v



TABLE OF AUTHORITIES--Continued

Studies, Pamphlets and
Periodicals: Page:

Bureau of the Census,
U.S. Dept, of Commerce, 
"Characteristics of Households 
and Persons Receiving Selected 
Non-Cash Benefits: 1980”
(1982)........................  19

Bureau of the Census,
U.S. Dept, of Commerce,
"Classified Index of 
Industries and Occunations"
(Nov. 1982)....... ‘. . . ....... 13

Bureau of the Census,
U.S. Dept, of Commerce,
"Families Maintained by 
Female Householders 1970-79"
(1980)........................  20

Bureau of the Census,
U.S. Dept, of Commerce, "Money 
Income of Households, Families, 
and Persons in the United 
States: 1980" (July, 1982)... 23

Bureau of the Census,
U.S. Dept, of Commerce, "Money 
Income and Poverty Status of 
Families and Persons in the 
United States: 1981" (Advance
Data from the March, 1982 
Current Population Survey)
(1982)___.....................  19

vi



TABLE OF AUTHORITIES--Continued

Studies, Pamphlets and 
Periodicals: Page :

Bureau of the Census,
U.S. Dept, of Commerce, 
"Statistical Abstracts of 
the United States: 1981" 
(1981)........................ 14, 15

Bureau of the Census,
U.S. Dept, of Commerce, "Wage 
and Salary Data from the 
Income Survey Development 
Program: 1979" (1982)...... . 21, 23

Equal Employment Opportunities 
Enforcement Act of 1971, 
Hearings on S.2515, 2619,
H.R. 1746 Before the Subcomm. 
on Labor of Senate Comm, on 
Labor & Public Welfare,
92d Cong. (1971).............. 28

Federal Government Task Force, 
"Reduction In Force Survey 
Third Quarter Fiscal Year 
1982"...... ................... 34

Federal Government Service Task 
Force, "Summary of Task Force 
RIF Survey, Quarter 1 and 
Quarter 2 Fiscal Year 1982"... 34

H.R. No. 238, 92d Cong.,
1st Sess. (1971), reprinted 
in 1972 U.S. Code Cong.
B~Ad. News 2137............... 27

Nat'1 Advisory Council on 
Economic Opportunity,
"Critical Choices for the 80's" 
(1980)........................ 18, 19 

20

vii



TABLE OF AUTHORITIES--Continued

Studies, Pamphlets and
Periodicals: Page:

N.Y. Times, Nov. 6, 1982,
at 29, col. 3.................  11

N.Y. Times, Nov. 6, 1982,
at 32, col. 5.................  11

U.S. Comm'n on Civil Rights,
"Affirmative Action in the
1980's: Dismantling the
Process of Discrimination" 35, 38
(1981)......................... 39, 42

U.S. Comm'n on Civil Rights,
"For All the People . . .  By-
All the People" (1969)....... 26

U.S. Comm'n on Civil Rights,
"Last Hired, First Fired:
Layoffs and Civil Rights"
(1977).....    31, 32

U.S. Comm'n on Civil Rights,
"Women Still in Poverty"
(1979) ........................ 19, 22

Wright, "Color-Blind Theories 
and Color Conscious Remedies,"
47 U. Chi. L. Rev. 213
(1980) ............. .. .......  39, 40

viii



INTEREST AND DESCRIPTION OF 
AMICI CURIAE

This brief amicus curiae in support of 

respondents is submitted on behalf of the 

National Organization for Women; American 

Association of University Women; Equal 

Rights Advocates, Inc.; League of Women 

Voters of the United States; National 

Conference of Black Lawyers; National 

Women's Law Center; Women Employed; and 

Women's Legal Defense Fund.
The National Organization for Women 

is the largest feminist organiza­

tion in the United States, with a member­

ship of over 225,000 women and men in more 

than 750 chapters throughout the country. 

Since its founding in 1966, a major goal of 

NOW has been the eradication of sex dis-

■JU
"Letters from counsel for all parties, con­
senting to the filing of this brief, are 
being filed with the Clerk.



crimination in employment, and the elimina­

tion of barriers that deny women economic 

opportunities and the ability to become 

economically self-sufficient. NOW believes 

that economic equality in the paid workforce 

is fundamental to women's ability to achieve 

equality in other aspects of society. In 

furthering its commitment to that goal, NOW 

has participated in numerous cases and com­

mented on proposed legislation and regula­

tions to secure full enforcement of laws 

prohibiting employment discrimination.

The American Association of University 
Women is a national organization 

of 190,000 college-educated women working 

for the advancement of women. Dedicated 

for 100 years to promoting the social and 

economic well being of all persons, the 

AAUW affirms its commitment to equal em­

ployment opportunity for women and men.

Equal Rights Advocates, Inc. is a 

San Francisco based, public interest le-

2



gal and educational corporation special­

izing in the area of sex discrimination. 

It has a long history of interest, activ­

ism and advocacy in all areas of the law 

which affect equality between the sexes. 

ERA, Inc. has been particularly concern­

ed with gender equality in the workforce 

because economic independence is funda­

mental to women's ability to gain equal­

ity in other aspects of society. This 

concern has been expressed through ERA, 

Inc.'s participation, both as counsel and 

as amicus, in numerous employment dis­

crimination cases.
The League of Women Voters of the 

United States is a nonpartisan, non­

profit membership organization, incorpo­

rated under the laws of the District of 

Columbia, with a current membership of 

113,000 in 1250 state and local Leagues 

located in all states, the District of 

Columbia, Puerto Rico, and the Virgin

3



Islands. Since its inception in 1920, the 

League's purpose has been to promote polit­

ical responsibility through informed and 

active participation of citizens in govern­

ment. The League believes that no person 

or group should suffer legal, economic, or 

administrative discrimination, and is com­
mitted to the eradication of discrimination 

against minorities and women through af­
firmative action.

The National Conference of Black Lawyers 

is a membership organization of lawyers, 

scholars, legal workers, law students and 

other legal activists in the United States 

and abroad. The purpose of the organization 

is to promote and protect the interests of 

Black men and women in all phases of human 

life. Among the organization's primary 

concerns is the elimination of employment 

discrimination and the implementation and 

retention of viable affirmative action 

programs which serve to promote economic

4



equity for Black men and women in the United 

States.

The National Women's Law Center is a 

legal organization, located in Washington,

D.C., with the purpose to protect and ad­

vance women's rights. The Center repre­

sents women's concerns before federal ad­

ministrative agencies and courts. The 

Center has been involved in issues affect­

ing the employment rights of women, and in 
particular has handled cases involving em­

ployment of women in nontraditional jobs.

Women Employed is a national organi­

zation, based in Chicago, with a membership 

of 3,000 women workers. Over the past ten 

years, the organization has assisted work­

ing women with problems of sex discrimina­

tion. Women Employed also monitors the 

enforcement, actions and policies of the 

EEOC and Office of Federal Contract Com- 

liance Programs with regard to a broad 

range of sex discrimination issues.

5



Women's Legal Defense Fund is a non­

profit, tax exempt membership organization, 

founded in 1971 to provide pro bono legal 

assistance to women who have been discrimi­

nated against on the basis of sex. The 

Fund devotes a major portion of its resources 

to combatting sex discrimination in employ­

ment, through litigation of significant 

employment discrimination cases, operation 

of an employment discrimination counselling 

program, public education, and agency ad­

vocacy before the EEOC and other federal 

agencies that are charged with enforcement 

of equal opportunity laws.

These organizations are dedicated to 

the principle of equal treatment under the 

law and to the elimination of sex and race 

discrimination in employment. Amici believe 
that the case before the Court is of great 

importance to the ability of the federal 

courts to provide effective remedies for 

employment discrimination.

6



SUMMARY OF ARGUMENT

The petitioners in this case ask the 

Court to subordinate a judicially-approved 

remedial order to a seniority-based layoff 

plan which threatened to wipe out the pro­

gress made, pursuant to consent decrees 

approved by the district court in 1974 and 

1980, toward racial and sexual integration 

of the Memphis Fire Department. The abil­

ity of the federal courts to protect reme­

dial decrees, at issue in this case, direct­

ly affects the ability of women of all 

races and ethnic groups to obtain and main­

tain employment in state and local govern­

ment services.

Systematic exclusion of women from 

employment in the protective services has 

been judicially acknowledged, and courts 

have acted to remedy the effects of this

* Amici adopt the argument that this case 
is moot as contained in the brief for res­
pondent .

- 7-



discrimination. Increased availability of 

employment in municipal protective ser­

vices is a critical factor in the struggle 

of many women to be economically self-suf­

ficient. One of the most significant cur­

rent demographic trends is the dramatic 

increase in the poverty of women. Institu­

tionalized sex discrimination contributes 

to this trend and confines women to low 

status, low paying jobs. The serious eco­

nomic plight of women underscores the cri­

tical importance of removing barriers to 

equal employment opportunity.

The national policy to eliminate dis­

crimination in both public and private 

sectors, through Congressional legislation, 

is clear. However, despite enactment of 

various statutes prohibiting discrimination, 

minorities and women are still struggling 

to achieve equality. In addition to hiring 

barriers, the "last hired, first fired"

-8-



practice for structuring layoffs dispropor­

tionately affects women and minorities in a 

way that can eviscerate the modest progress 

made to date in integrating the work force. 

In order to enforce the broad policies a- 

gainst employment discrimination, the courts 

must be free to approve affirmative action 

plans, taking into consideration the effects 

and goals of such plans and the seniority 

expectations of the nonminority employees.

District courts are vested with broad 

equitable powers. To effectively address 

race and sex discrimination, the courts must 

retain flexibility and should not be deprived 

of the ability to employ practical wisdom in 

structuring remedies. In the instant case, 

the goals of the 1974 and 1980 consent de­

crees had not yet been accomplished when the 

layoff proposal was announced. There was 

sufficient evidence of discrimination in the 

record to support the district court’s order.

-9-



ARGUMENT

POINT I

THIS CASE RAISES ISSUES HAVING 
A SIGNIFICANT IMPACT ON WOMEN’S 
OPPORTUNITIES TO BECOME ECONOMI- 
CALLY SELF-SUFFICIENT________ _

In the instant case, this Court is 

presented with some of the consequences 

of the pervasive history of race dis­

crimination in employment in a uniformed 

municipal service. No less severe, how­

ever, has been the systematic exclusion 

of women of all races from such protec­

tive services jobs as firefighting. The 

effects of the history of sex discrimi­

nation in protective services employ-

-10-



ment are being remedied very slowly.-'

The ability of the federal courts to pro­
tect remedial decrees, at issue in 

this case, directly affects the ability of 

all women to obtain and maintain employ­

ment in state and local government services.

Historically, women have been effec­
tively barred from state and local uniform 

protective services by a variety of practices. 

One of the most common policies has been the 

complete segregation of women within the 

protective services, and their confinement 

to a few low-prestige jobs "appropriate” to 

their sex.

11

~T7 ----------— *— •— ~—In New York City, for example, the qual­
ifying test for firefighters was found to 
be sex discriminatory in 1982, N.Y. Times, 
Nov. 6, 1982, at 32, col. 5. The first 
women recruits for the New York City fire 
department entered training on September 
22, 1982. N.Y. Times, Nov. 6, 1982, at 
29, col. 3, and were sworn in as members 
of the force on November 5, 1982. Id.

-11-



[Women] were not permitted to com­
pete with men on [police] entrance 
examinations. Their eligibility 
was limited to a relatively few 
positions as 'police women' and 
'police matrons'. They were given 
limited responsibility, primarily 
for processing, searching and care 
and custody of women prisoners and 
a limited amount of youth work.
They were not used for patrol work. 
United States v. City of Chicago, 
3H5~Tr“5uppr“543y '548' ‘T^:T)7''TTT7 
1974).

Additionally, women have been required to 

meet stricter educational criteria than 

men, mandating more years of formal educa­
tion than men, e.g,, Schaefer v, Tannian, 

394 F. Supp. 1128, 1130 (E.D. Mich. 1974) 

(police). Moreover, not only have women 

been relegated to sex-segregated jobs, some 

departments have maintained strict quotas 

on the number of women hired. Id. at 1131,

Sex-segregated schedules of entrance ex­

aminations have also been maintained, af­

fording women substantially fewer opportun­

ities than men to apply for the handful 

of positions open to them. ' Id, at 1130.

- 12-



As a result of these widespread dis­

criminatory practices, the participation 

of women in the uniformed state and munic­

ipal services has been extremely low. In 

I960, women comprised only 4.1% of all
2/workers in protective service occupations,— 

Bureau of Labor Statistics, U.S. Dept, of 

Labor, Perspectives on Working Women: A 

Databook 10, Table 11 (1980), By 1981, the 

percentage had risen to 10.17o. Bureau of 

Labor Statistics, U.S. Dept, of Labor, 
Employment and Earnings 141 (March 1982). 

Since women now constitute more than 42L 

of the paid labor force, these percentages

™_y----- ------ ------- ~
-The Bureau of the Census category of 
"protective service" work includes fire 
inspection and fire prevention occupations, 
firefighting occupations, police and de­
tectives, sheriffs, bailiffs and other law 
enforcement officers, correctional institu­
tion officers, crossing guards, guards and 
police. Bureau of the Census, U.S. Dept, 
of Commerce, Classified Index of Industries 
and Occupations XlV (Novi 1982).

-13-



reflect a gross underrepresentation of
t7nmpn 3/ women. —

Prior to 1972, when Title VII was 

amended to extend coverage to state and 

local government employment (Title VII of 

the Civil Rights Act of 1964, as amended 

by the Equal Employment Opportunity Act of 

1972, 42 U.S.C.A. §2000e et se£. (West 1981)), 

women were barely employed in the protective 

services at all. They constituted less than 
3% of police, less than 5% of guards, and 

roughly one-half of one percent of all fire­

fighters in 1972. Bureau of the Census,

U.S. Dept, of Commerce, Statistical Ab-

------ -----------~—The percentages of women in these occu­
pations vary dramatically among occupa­
tions, although women are substantially 
underrepresented in all. In 1981, women 
constituted 0.9% of all firefighters, 5.7% 
of all police officers, 7% of all sheriffs 
and bailiffs, and 13.7% of all guards.
Bureau of Labor Statistics, U.S. Dept, of 
Labor, Employment and Earnings 141 (March 
1.982).

-14-



stract's of the United States: 1981, 420
(1981). A /

Not surprisingly, since the enactment 

of the 1972 amendments, numerous cases al­

leging sex discrimination in protective 

services employment have been brought in 

the federal courts. A sampling of these 

cases shows a consistent pattern of denial 

of opportunities to women. In 1974, none 

of the firefighters in 45 Louisiana munic­

ipalities and parishes were women, United 

States v. City of Alexandria, 614 F .2d 
1358, 1365 n.14 (5th Cir. 1980). In 1974, 

women constituted slightly over 2% of the 

police officers in Detroit, Schaefer v. 

Tannian, 394 F. Supp. at 1130; in 1973, 
women comprised less than 17, of the police

A  Figures for the category of "sheriffs 
and bailiffs" are not available for this 
period.

-15-



officers in Chicago, United States v. City

of Chicago, 385 F, Supp. at 548. In 1979, 

only 2.37, of the police officers in the 

cities of Yonkers and White Plains,. New 

York were women, Complaint, United States 

v. City of Yonkers, 80 Civ. 7407 (S.D.N.Y. 

1979) , although in 1977 more than 207, of 

the applicants for officer positions in 

White Plains were women. Stipulation, id, 

(April 1981). In 1977, only three out of 

91 trainees in the Nassau County, New York 

police academy were women. Memorandum and 

Order, United States v, Nassau County 

Police Dept., No, 76 C1869, at 15 (E.D.N.Y. 

July 21, 1978)
Women have not been comparably ex­

cluded from low-paid, low prestige civilian 

clerical and support jobs in the state and 
municipal services. In Nassau County, for 

example, in 1977 women constituted 0.6%

-------_--------------
—The other 88 trainees were white men.

-16-



of the sworn police department employees, 

but 78.9% of the civilian personnel in the 

department. Id. at 14.

Faced with clear and dramatic evi­

dence of sex discrimination, the federal 
courts have found liability and provided 

for effective relief, including percentage 

hiring goals. See, e.g., United States v. 

City of Alexandria, 614 F.2d at 1368 (con­

sent decree covering firefighter and police 

hiring); Schaefer v. Tannian, 394 F. Supp. 

at 1135 (order covering police hiring); 

United States v. City of Buffalo, 633 F.2d 

643, 647 (2d Cir. 1980) (order covering 

firefighter and police hiring); United 

States v. City of Philadelphia, 499 F. Supp 

1196, 1204 (E.D. Pa. 1980) (injunction cov­

ering police hiring). In so doing, the 

courts have recognized both the importance 

of opening municipal service employment to 

women and the necessity of court orders to

-17-



assure the initial and continuing availa­

bility to women of these fundamentally im­

portant employment opportunities. In 

remedying the effects of sex discrimination, 

like racial discrimination, rigorous judi­

cial scrutiny and remedial action are the 

strongest tools to prevent backsliding and 

solidifying the progress already made in 

the integration of municipal protective 

services.

Increased availability of employment 

in municipal protective services is 

important to the efforts of many women 

to become economically self-sufficient.
The desperate economic position of women 

in our society--and growing poverty of 

women and children generally--is today widely 

acknowledged. See, e .g ., Nat'l Advisory 

Council on Economic Opportunity. Critical 

Choices for the 80's (1980) [hereinafter 

cited as Critical Choices]; U.S. Comm'n on

-18-



Civil Rights, Women Still in Poverty

(1979). Nearly one-third of all female­

headed households are living below the 

poverty line, while only one in 18 male­

headed households is in a similar position. 

Critical Choices at 17.— In 1980, families 

maintained by women alone had the lowest 

median annual income of all families. Bur­

eau of the Census, U.S. Dept, of Commerce, 

Characteristics of Households and Persons 

Receiving Selected Non-Cash Benefits: 1980 

9 (1982) [hereinafter, Characteristics].

The situation is particularly grim for 

women with young children. In 1978, the 

median income of families headed by women

-^Between 1980 and 1981, the number of poor 
families headed by women increased by 231,000, 
Bureau of the Census, U.S. Dept, of Com­
merce, Money Income and Poverty Status of 
Fami 11 e s ^ h Q Wr^Ws^iT~TFie~TIniTeH~~?tate s : 
T^ETTAdvance Data'f rom' the'' March, 1982 
Current. PopuIatTon Survey) 3, ‘Table B (1982) .

-19-



whose children were under six was only 

$4,498, 30% of the median income for all 

families with children under six. Bureau 

of the Census, U.S. Dept, of Commerce, 
Families Maintained by Female Householders 

1970-79 36 (1980). The National Advisory 

Council on Economic Opportunity has esti­

mated that if current demographic trends 

continue, this nation's impoverished class 

by the year 2,000 will be comprised exclu­

sively of women and children. Critical 

Choices at 19.

Among the major factors contributing 

to the precarious financial position of 
women are pervasive sex discrimination and 

job segregation in the workforce. Women 

comprise 42% of the workforce nationwide. 

Bureau of Labor Statistics, U.S. Dept, of 

Labor, Perspectives on Working Women: A

Databook 3 Table 1 (1980). Yet, they are

-20-



concentrated in a small number of occupa­

tions which are marked by low pay and 

limited opportunities. In 1981, half of 

the 43,000,000 women in the paid labor 

force were employed in only 20 occupations. 

Bureau of Labor Statistics, U.S. Dept, of 

Labor, Employment and Earnings (March 

1982). While 22% of all men were in three 

of the major occupation groups (sales, 

clerical and service) , 64%, of the women 

were employed in these occupations. Bureau 

of the Census, U.S. Dept, of Commerce, Wage 

and Salary Data from the Income Survey 

Development Programs 1979 3 (1982). There 

is evidence that the occupational segrega­

tion of women is increasing. For example, 

in late 1981 almost 75%, of all clerical 

workers were women, Bureau of Labor Sta­

tistics, U.S. Dept, of Labor, Employment 

and Earnings 22 Table A-21 (1982), as com­

pared with 62%, in 1950. Bureau of Labor

-21-



Statistics, U.S. Dept, of Labor, Employment 

in Perspective: Working Women 1 (Report 

No. 544, 1978).
Further, the wages for "women's jobs" 

lag behind those categories that are tra­

ditionally male jobs. The 1977 weekly wage 

for 18 of the "women's jobs" ranged from 

$59 for private household workers to $171 

for sewers and stitchers. Bureau of Labor 

Statistics, U.S. Dept, of Labor, News:

Trends in Weekly and Hourly Earnings for 

Major Labor Force Groups, Tables 1-3 (Nov.

2, 1977). In contrast, the 1977 average 
weekly wage for male-dominated jobs such as 

construction ($297), transportation and 

public utilities ($275), and motor vehicle 

retailers ($208) was far better. U.S.

Comm'n on Civil Rights, Women Still in 

Poverty 19 (1979). But even within pre­

dominantly female occupations, women's 

wages are significantly below those received

-22-



by men. On average, a female sales worker, 

for example, is paid only 52% of x\?ages paid 

to a male sales worker, Bureau of the 

Census, U.S. Dept, of Commerce, Money Income 

of Households, Families, and Persons in the 

United States: 1980 Table 55 (July 1982). 

Female clerical workers receive only 59%. 

of the wages paid to male clerical workers. 

Id .

In view of persistent job segregation 

and the concomitant wage gap, it is not sur­

prising that the median earnings of women 

in the paid work force is one half the 

median earnings of men. Bureau of the 

Census, U.S. Dept, of Commerce, Wage and 

Salary Data from the Income Survey Develop­

ment Program: 1979 3, Table 1 (1982).

The serious economic plight of women under­

scores the critical importance of removing 

barriers to equal employment opportunity.

23



It is only through assuring women truly eq­

ual access to jobs that we as a society can 

reverse these current trends and give women 

the real possibility of achieving economic 

self-sufficiency for themselves and their 

families.

24 -



POINT II
FEDERAL ANTI-DISCRIMINATION 
POLICY REQUIRES EFFECTIVE 
REMEDIES FOR EMPLOYMENT DIS­
CRIMINATION BY GOVERNMENT 
EMPLOYERS ______

A. The 1972 Amendments to Title VII of 
the Civil Rights Act of 1964 Were 
Enacted to Redress Widespread Em­
ployment Discrimination In State 
and Local Government Employment

This Court has emphatically recog­

nized that the intent of Congress, in en­

acting Title VII of the Civil Rights Act 

of 1964, was to "assure equality of employ­

ment opportunity and to eliminate those 
discriminatory practices and devices which 

have fostered racially stratified job en­

vironments to the disadvantage of minority 

citizens." McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 800 (1973). See also 

United Steelworkers of America v. Weber,

443 U.S. 193 (1979); Albemarle Paper Co. 

v. Moody, 422 U.S. 405, 418-419 (1975);

- 25 ~



Alexander v. Gardner-Denver Co., 415 U.S.

36, 44 (1974); Griggs v. Duke Power Co.,

401 U.S. 424, 429-30 (1971). Just over six 

years after the original Act was passed, 

Congress in 1972 reaffirmed its commitment 

to equal employment opportunity for all 

citizens, by amending Title VII to, inter 

alia, strengthen the enforcement powers of 

the Equal Employment Opportunity Commis­

sion and extend the provisions of the Act 

to employees of state and local governments 

86 Stat. 103, Sec. 701(f), 42 U.S.C. §2000e 

Explaining the need for these amend­

ments, the House Report relied on a 1969 

U.S. Commission on Civil Rights report—  ̂

which found that "widespread discrimina­

tion against minorities exist[ed] in state 

and local government employment, and that 

the existence of this discrimination [was]

— U . S . Cornm’n on Civil Rights, For All The 
People ...By All The People, (1969")

26



perpetuated by the presence of both insti­

tutional and overt discriminatory prac­

tices." H.R. No. 238, 92d Cong., 1st Sess. 

(1971), reprinted in 1972 U.S. Code Cong.

& Ad. News 2137, 2152.

The House Report further noted that 

this type of employment discrimination was 

"particularly acute and had the most dele­

terious effect," id. at 2153, since it was 

being practiced in the governmental activ­

ities that were "most visible to the minor­

ity communities (notably education, law 

enforcement, and the administration of 

justice)..." Id.

The Chairman of the Equal Employment 

Opportunity Commission voiced a similar 

concern in testimony before the House of 

Representatives regarding the proposed 

amendments, noting that the "failure of 

state and local agencies to accord equal 

employment to their employees is particu­

larly distressing in light of the impor­

27 -



tance that these agencies play in the daily 

lives of the local communities...." Equal 

Employment Opportunities Enforcement Act 

of 1971, Hearings on S.2515, 2619, H.R.

1746 Before the Subcomm. on Labor of Senate 

Comm, on Labor & Public Welfare, 92d Cong. 

(1971).
Nowhere are these concerns more evi­

dent or troublesome than in the continuing 

and almost total exclusion of women and 

minorities from local protective service 

departments--agencies closely identified 

with the overall protection of the public, 

and therefore perhaps the most visible of 

all occupations.

-28-



B. Government Employment Practices, 
Such As Seniority-Based Lay-Off 
Plans, Cannot Be Allowed To Frus­
trate Efforts To Remedy Discrim- 
inat ion. ______________

1. The use of the "last hired- 
first fired" principle to reduce 
employment in times of economic 
recession has a disproportionate 
impact on minorities and women.

Despite the enactment of federal,

— ^Amici recognize, of course, the im­
munity afforded bona fide seniority plans 
under §703(h) of Title VII by this Court's 
ruling in Teamsters v. United States, 431 
U.S. 324 (1977). At issue in this case, 
however, is not the lawfulness, under 
Title VII, of the seniority system of the 
City of Memphis fire department, but 
rather the appropriateness, under Title 
VII remedial principles, of relief which 
implicates a seniority plan. It is in this 
context only that amici urge a temporary 
restructuring of the "last hired-first 
fired" principle.

- 29



state, and local statutes and presidential 

orders which prohibit discrimination in 

e m p l o y m e n t e q u a l  employment opportuni­

ty remains an unrealized goal for many of 

this country's minority and women paid 

workers. For these people, serious barriers 

to their entrance into and continued participa­

tion in the paid job market continue to 

exist. Significant among these is the 

"last hired, first fired" practice for 

structuring layoffs, which has dispropor­

tionately affected minorities and women, 

particularly during our nation's most 

recent economic troubles. As the

— ■/See, e.g. , 42 U.S.C.A. §1981 (West 1981);
42 UTS.C.A. §1983 (West 1981); Title VI,
§601 of the Civil Rights Act of 1964, 42 
U.S.C.A. §2000d (West 1981); Title VII of the 
Civil Rights Act of 1964, as amended by the 
Equal Employment Opportunity Act of 1972,
42 U.S.C.A. §2000e et. seq. (West 1981);
Exec. Order 11246, 30 Fed.Reg. 12319 (1965), 
as amended by Exec. Order 11375, 32 Fed.
Reg. 14303 (1976); Public Works Employment 
Act of 1977, 42 U.S.C.A. §6705(f)(2)(West 
1983).

-30-



United States Commission on Civil Rights 

pointed out in its 1977 Report Last Hired, 

First Fired: Layoffs and Civil Rights 1,

(1977) [hereinafter cited as Last Hired, 

First Fired]:
The long and extensive use of this 
policy by employers is one reason 
why income remains consistently 
lower and unemployment rates high­
er for these groups than for the 
labor force as a whole.

See Point I, supra.

Review of the impact of the 1974-75 

recession on the employment status of 

minority and women workers highlights the 

devastating effects which can result from 

such layoffs. Between the end of 1973 

and mid-year 1975, the unemployment rate 

for adult women rose steadily from 5.9% 

to 8.5%. Last Hired. First Fired at 10. 
Jobless rates reached 14.3%, for non-whites, 

and 12.4%, for Hispanic workers by mid- 
1975, as compared to 8.2% for white work­

ers generally. Id.

_ 31 _



Unemployment resulting from layoffs 

during that time period rose most sharply 

in those blue collar occupations where 

minority employees were most likely to be 

concentrated. Id. While the concentration 

of women workers in trade and services in­

dustries cushioned the impact of layoffs 

for women employees overall,—  ̂ nonetheless, 

women who had broken into traditionally male 

jobs such as the assembly line of automo­

bile plants or as patrol officers on police 

forces, were heavily affected by job loss. 

Id. Moreover, in some industries where 

minorities represented only 10-12% of the 

workforce, they accounted for 60-707, of 

those workers laid off in 1974. Id. at 

24-25.

— ^Cyclical changes in employment rates 
are generally less dramatic in trade and 
services than in goods-producing indus- 
tries. Last Hired, First Fired at 11.

- 32



The Impact of layoffs on government 

employees has been no less severe. For 

example, in mid-1975, the New York City 

Police Department laid off 371 of its 

680 female police officers, out of a total 

force of almost 26,000. Id. Over half of all 
Hispanic workers in New York City lost 

their jobs between 1974 and 1975. Id.

More recently, minority workers have 
accounted for 2335 of the 2944 layoffs of 

public sector employees ordered in 

Detroit between 1980-82. Bureau of 

National Affairs, Layoffs, Rifs, and EEO 

in the Public Sector: A BNA Special Report

_ 33



23 (February 1982). — ^

In April 1975, the United States 

Department of Labor reported that "recently 

hired workers, including many women and minority

1X7-----------------------------------— Federal employees have fared no better. 
In 1981, 11,845 employees of the Federal 
government were laid off because of budget 
cuts. Bureau of National Affairs, Layoffs, 
Rifs, and EEO In The Public Sector: A BNA
Special Report 5 (February 1983). These" 
layoffs were 50% higher for minority 
employees than non-minority employees. Id. 
Among administrative employees, women were 
laid off at a rate 61%, greater than men; 
minority workers in administrative posi­
tions experienced layoffs at a rate 3.5 
times the average rate. Id. In the first 
two quarters of 1982, 5321 federal employ­
ees were laid off; nearly 63% of these 
laid off employees were women, and women 
and minority men together comprised nearly 
807, of the layoffs. Summary of Task Force 
RIF Survey, Quarter 1 and Quarter 2 Fiscal 
Year 1982. (Federal Government Service 
Task Force). In the third quarter of 1982, 
1393 federal employees were laid off,
50.6% of whom were women. The combined 
percentage of women and minorities laid 
off was 70.9%. Reduction In Force Survey 
Third Quarter Fiscal Year 1982 (Federal 
Government Service Task Force).

34 _



group members, have become early casualties

of the economic downturn." Last Hired,

First Fired at 10. Statistics reflecting 

the most recent federal layoffs, supra n. 11, 

demonstrate that the effects of the current 

recessionary cycle on the employment patterns 

of women and minorities are similarly 

disproportionate and injurious. Clearly, 

if affirmative measures designed to counter­

act these results are not instituted and 

adopted, "the opportunties [for women and 

minorities] laboriously created in the 70's 

may be destroyed during hard times in the 

80's." U.S. Comm'n on Civil Rights, 

Affirmative Action In the 1980's: Dis­

mantling The Process of Discrimination 36 

(1981) [hereinafter cited as Affirmative 

Action].

Strict adherence to the last hired, 

first fired policy of layoffs "locks in" 

the effects of past discrimination by

35



continuing the advantage white males gain­

ed in employment as a direct result of 

minimal or no competition from women and 

minorities in the past.

2. Courts must be free to impose 
affirmative color-conscious or 
gender-conscious remedies if they 
are to fully effectuate the broad 
public policy against employment 
discrimination.

In deciding that under §706(g) the 

provision of retroactive seniority was 

"generally appropriate" as a remedy for 

hiring discrimination, this Court carefully 

considered the effect of an affirmative rem­

edy on incumbent employees. Franks v, Bowman 

Transportation Co., 424 U.S. 747, 799 (1976). 

It found "untenable the conclusion that 

this form of relief may be denied merely 

because the interests of other employees 

may thereby be affected." 424 U.S. at 755. 

The Court recognized that retroactive 

seniority could affect the expectations 

and prospects of other employees,

- 36



but concluded that the importance of the 

remedy was paramount. 424 U.S. at 777-78.

The result of the remedy approved in 

Franks is the possibility that some white 

male workers who have been on the job for 

some time may find themselves, in hard 

times, losing economic benefits, or even 

being laid off, as a result of seniority- 

based relief ordered.

In the instant case, the effect of the 

district court's order on the department's 

seniority system was minor. No black fire­

fighter with less seniority than a white 

firefighter retained his job while the 

white firefighter was laid off. Brief of 
Petitioners Memphis Fire Department at A4. 

Approximately 29 white firefighters were 

bumped to a lower position where minority 

firefighters with the same amount of 

seniority were not. Id. at A5-9.

But, the fact that some individual 

white males may be disadvantaged by a

37



court-ordered temporary bypass of seniority 

in times of layoffs should not preclude a 

court from authorizing such affirmative 

relief. For this Court to allow its deter­

mination of an appropriate remedy to be 

governed by the expectations of individual 

white male firefighters is to ignore the 

overall fairness of the plan, and the fact 

that affirmative measures "often produce 

changes in our institutions that are bene­

ficial to everyone, including white males." 

Affirmative Action at 36.

Nor should this Court be troubled by 

assertions of "reverse discrimination" by 

opponents of such affirmative remedies.

Such charges are mere smokescreens designed 

to undermine full and effective enforcement 

of congressional intent to end race and sex 

discrimination in employment: "[T]he

charge of 'reverse discrimination', in 

essence, equates efforts to dismantle the 

process of discrimination with that process

38



itself. Such an equation is profoundly and 

fundamentally incorrect." Affirmative 

Action at 41.

Adherents of color-blind or gender- 

neutral solutions to discrimination "[ig­

nore] the context in which the problem of 

inequality has persisted in this country.. 

.." Wright, Color-Blind Theories and 

Color Conscious Remedies, 47 U. Chi. L. Rev. 

213, 214 (1980)(hereinafter Wright) . 

Discrimination is "an interlocking process 

involving the attitudes and actions of 

individuals and the organizations and 

social structures that guide individual 

behavior.” Affirmative Action at 13. 

Discrimination in employment simply cannot 
be equated solely with individual prejudice 

or expressions of bias, for when the forces 

of individual attitudes and actions, in 

combination with those of organizations 

and relevant social structures "are at work 

anti-discrimination remedies that insist

39



on 'color-blindness' and 'gender-neutral­

ity' are insufficient." Id. at 2,

Moreover, it is clear that Congress, in 

enacting anti-discrimination legislation 

has rejected a "color-blind" or "gender- 

neutral" theory of government, and directed 

government to employ its power to eradicate 

it. As Judge Skelly Wright has emphatical­

ly remarked, "to call such legislation 

'color-blind' is a meaningless abstraction. 

Legislation against invidious discrimina­

tion helps one race and not the other be­

cause one race and not the other needs such 

help." Wright at 220-21.

Decisions of this Court demonstrate its 

sensitivity to and agreement with the prin­

ciples discussed above. As Justice Blackmun 

stated in his opinion in Regents of the Univ 

of Calif, v. Bakke, 438 U.S. 265, 407 (1978) 

"[i]n order to get beyond racism, we must 

first take account of race....And in order 

to treat persons equally, we must treat

40



them differently. We cannot— we dare not—  

let the equal protection clause perpetuate 

racial supremacy." Likewise, in United 

Steelworkers of America v. Weber, 443 U.S. 

193 (1979), Justice Brennan refused to adopt 

a literal interpretation of §§703(a) and 

(d) of Title VII, which would have neces­

sarily prohibited all race-conscious affirm­

ative actions plans:

The prohibition against racial 
discrimination in §§703(a) and (d) 
of Title VII must therefore be read 
against the background of the 
legislative history of Title VII 
and the historical context from 
which the Act arose...Examina­
tion of those sources makes clear 
that an interpretation of the 
sections that forbade all race­
conscious affirmative action 
'would bring about an end com­
pletely at variance with the 
purpose of the statute' and must 
be rejected...(citations omitted)

See also Fullilove v. Klutznick, 448 U.S.

448 (1980)(upholding as constitutional a

provision of the Public. Works Employment

Act of 1977 that required state or local

governments to use 107> of federal funds

41



granted for public works contracts to pro 

cure services or supplies from minority- 

owned or controlled businesses).

In the difficult economic circum­

stances we now face, the teachings of thi 

Court's cases on the importance of remedy 

ing discrimination must not be forgotten.

In this charged atmosphere, there 
is a strong temptation to view 
affirmative action as pitting the 
rights of minorities and women 
against white males in a battle 
over diminishing resources. The 
challenge, however, is to maintain, 
indeed, to advance our commitment 
to equality without asserting one 
equity over another.

Affirmative Action at 6.

42



POINT III

THE DISTRICT COURT'S ORDER 
WAS NOT AN ABUSE OF DISCRETION 
AND SHOULD BE UPHELD

A. Equitable Pvelief Will Be Disturbed
Only If It Constitutes An Abuse
Of Discretion By the Lower Court

This Court has made clear that appel­

late review of the issuance of equitable 

relief is limited to determination of whether 

the district court abused its discretion, 

and will be disturbed only if evidence is 

insufficient to support the court's action. 

Brotherhood of Locomotive Engineers v. 

Missouri-Kansas-Texas R.R. Co., 363 U.S.

528, 535 (1960); Albemarle Paper Co. v.

Moody, 422 U.S. 405, 446 (1975)(Rehnquist,

J. concurring). "In shaping equity decrees, 

the trial court is vested with broad discre­

tionary power; appellate review is corre­

spondingly narrow." Lemon v. Kurtzman, 411 

U.S. 192, 200 (1973); accord Swann v.

43



Charlotte-Mecklenburg Bd. of Ed., 402 U.S.

1, 15 (1971); International Salt Co. v. 

United States, 332 U.S. 392, 400-01 (1947).

Basic tenets of equity require a sensi­

tive weighing of practicalities and balanc­

ing of public and private interests. As 

this Court has often noted:

The essence of equity juris­
diction has been the power 
of the chancellor to do equity 
and to mould each decree to 
the necessities of the partic­
ular case. Flexibility rather 
than rigidity has distinguished 
it. The qualities of mercy 
and practicality have made 
equity the instrument for 
nice adjustment and reconcili­
ation between public and private 
needs as well as between 
competing private claims.

Swann v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. at 15, quoting Hecht Co. v. Bowles,

321 U.S. 321, 329-30 (1944). See also Lemon

v, Kurtzman, 411 U.S. at 200.
Subsequent modification of equitable 

relief requires broad discretion. System 

Fed1n No. 91, Ry. Emp. Dept, v. Wright, 364

44 -



U.S. 642, 647-48 (1961); cf. Browder v. Di­

rector, 111. Dept, of Corrections, 434 U.S. 25 7, 

263 n.7 (1978) (appellate review under Fed. R. 

Civ. P. 60 (b)) .
Because district judges are "uniquely 

situated... to appraise the societal forces 

at work in the communities where they sit," 

Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 

470 (1979)(Stewart, J., concurring), 

appellate review of equitable relief also 

requires deference to the judgment of the 

district court. See,e.g., Franks v. Bowman 

Transportation Co., Inc., 424 U.S. 747, 779- 

80 (1976); Swann v. Charlotte-Mecklenburg 

Bd. of Ed., 402 U.S. at 12. In addition, 

the district judge has the unique experience 

of having managed the litigation in the past. 

See, e.g., Brown v. Board of Ed., 349 U.S. 

294, 299 (1955).
Consistent with these principles of 

equity, the district courts must necessarily

45



retain flexibility to effectively address 

the varied situations which they confront.

The rules governing eradication of race and 

sex discrimination should not be rigid and 

absolute. The district courts must not be 

deprived of the capacity to employ practical 

wisdom in fashioning remedies. The district 

court's order in this case was wholly appro­

priate and within the sound discretion of 

the court, and therefore should be upheld.

B. The District Court’s Order Was
Grounded Upon Sufficient Evidence 
of Discrimination And Therefore 
Was Not An Abuse of Discretion

The evidence of discrimination in the 

Memphis Fire Department contained in the record be­

fore the district court in the instant case was a 

sufficient basis for the district court's in­

junction. For example, between 1950 and 

1976, the fire department hired only 94 

black firefighters as compared to 1683 white 

firefighters. Between 1969 and 1975 only

46



7 black firefighters received promotions as 

compared to 386 white firefighters. In 1979, 

blacks constituted only two out of 25 admin­

istrative personnel, 6 out of 26 apparatus 

maintenance workers, 7 of 89 ambulance 

service personnel, 8 of 37 fire prevention 

workers and 3 of 50 communications workers. 

There were no black employees in the train­

ing and water or air mask service categories. 

Eight of the thirteen material service work­

ers were black. Stotts v. Memphis Fire Depart­

ment, 679 F .2d 541, 550-51 n.5 (6th Cir. 1982).

In fact, the evidence was so striking 

that both the district court and the court 

of appeals commented on it. The district 

court, when modifying the 1980 consent decree 
observed:

While the agreement does not 
admit discrimination, it 
would be naive not to realize

47



that the Fire Department of 
this City was very discrim­
inatory towards black people 
for years, and it wasn't 
corrected properly until the 
Consent Decree was entered 
into this case.

It is true that this 
Court never had hearings and 
made findings, but I could 
take judicial notice of that 
from the figures that are in 
the record of this Court.

Petition For a Writ of Certiorari at A73. 

Indeed, the court thought the history of 

discrimination so apparent that it was com­

pelled to note "that the present situation 

resulted from prior discrimination, which 

is obvious." Id. at A76.

The Sixth Circuit, reviewing the dis­

trict court's ruling found "[t]he statistics 

contained in this record represent a very 

strong prima facie case of employment dis­

crimination." Stotts v. Memphis Fire Dept., 

679 F.2d at 550-51 n.5. Examining the 

statistics included in the record, the court 

noted a revealing sign of purposeful dis­

48



crimination in hiring, that "[i]n the spring 

of 1981, blacks constituted only 11 percent 

of the Memphis Fire Department. Approximate­

ly 35 percent of the City of Memphis is 

black." Id.
Faced with similar statistical dispar­

ities, other courts of appeals have endorsed 

similar affirmative relief through consent 

decrees to overcome the effects of past dis­

crimination. See, e .g ., United States v.

City of Miami, Fla., 614 F.2d 1322 (5th Cir. 

1980), mod. in part on other grounds, 644 
F.2d 435 (5th Cir, 1 9 8 1 ) (approval of consent 

decree affording affirmative relief based 

on statistical disparities in racial compo­

sition) ; United States v. City of Alexandria, 

614 F .2d 1358 (5th Cir. 1980)(approval of 
consent decree affording affirmative action 

based on statistical disparities in racial 

composition).

49



C. The District Court, Pursuant To Its 
Duty To Enforce The Decree And Its 
Authority To Modify It In Light Of 
Changed Circumstances, Did Not Abuse 
Its Broad Equitable Powers__________

The lower court was confronted with a 

situation, engendered by the Mayor's pro­

posed layoffs, that would have significantly 
undermined the consent decrees. Both the 

goals of the 1974 and 1980 consent decrees, 

approved by the court, were explicit:

The City, therefore agrees 
to undertake as its long term 
goal in this decree, subject 
to the availability of quali­
fied applicants, the goal of 
achieving throughout the work­
force proportions of black and 
female employees in each job 
classification, approximating 
their respective proportions 
in the civilian labor force.

Stotts v. Memphis Fire Dept., 679 F.2d at 

571. The 1980 decree was intended to paral­

lel and supplement the 1974 decree. Id. at 
548. The 1980 decree underscored and re­

affirmed the goal of the 1974 decree 

particularly as it applied to representa-

50



tion of black citizens: "the goal shall be

to raise the black representation in each 

job classification on the fire department to 

levels approximating the black proportion of 

civilian labor in Shelby County." Id. at 576.

The goal of the 1974 and 1980 consent 

decrees had not been accomplished when the 

Mayor issued his order regarding layoffs.

The effect of the Mayor's proposed layoff 

policy on the ongoing goal 

of increasing the number of minorities in 

the department would have been drastic: 

"fifty-five percent of all minority Lieuten­

ants and 467o of all minority Drivers would 

either have been laid off or demoted had the 

layoffs occurred.  ̂ Id. at 549-50.

The lower court was under an obligation

~Y2j '—  In addition to eradicating the progress 
made pursuant to the consent decrees, the 
City's plan had the potential for perpetu­
ating discrimination in other city agencies 
by taking into account, in determining sen­
iority, an employee's prior service in 
another agency.

51



to assure implementation of the goals of 

the consent decrees to increase the percent­

age of black employees in the fire depart­

ment and to alleviate the effect of past 

discriminatory policies, and therefore 

expressly retained jurisdiction in the 

decree. According to Section 17 of the 

1980 decree, "The Court retains jurisdic­

tion of this action for such further orders 

as may be necessary or appropriate to 

effectuate the purposes of this decree."

Id. at 578.

As fully discussed above, the Mayor's 

proposal not only would have halted progress 

towards achieving that goal, but also would 

have sanctioned backsliding, thereby elimin­

ating much of the progress already made. In 

view of this probable result, the district 

court's order was necessary to slow any back­

ward movement that might occur. See U .S . v. 

Armour Co., 402 U.S. 673 (1981).

52



Further, there is no question that the 

district court had inherent power to modify 

its equitable relief to adapt to new or 

changed circumstances. United States v. 

United Shoe Corp., 391 U.S. 244, 251 (1968); 

System Fed. No. 91, Ry. Emp. Dept, v. Wright, 

364 U.S. 642, 647-48 (1961). The sudden 

layoffs--indeed, the first in the City's 

history--which were to occur in Memphis 

within several years after the signing of 

the remedial consent decree, posed an unfore­

seen threat to the ongoing remedy. As dis­

cussed above, had the layoffs been permitted, 

substantial eradication of all progress 

under the decree easily could have resulted 
without a modification of the remedial orders.

In these circumstances, modification 

of the prior consent decree was appropriate 

and necessary in order to prevent the sub­

stantial undoing of the remedy. Brown v. 

Neeb, 644 F.2d 551, 560 (6th Cir. 1981); 

Perrotte v. Percy, 489 F.Supp. 212, 214

53



(E.D. Wise. 1980); Bolden v. Pennsylvania 

State Police, 73 F.R.D. 370, 372 (E.D. Pa. 

1976), aff'd, 578 F.2d 912 (3d Cir. 1978).

The district court's decision represents 

that "special blend of what is necessary, 

what is fair, and what is workable,"

Lemon v. Kurtzman, 411 U.S. 192, 200 (1973), 

that characterizes equitable remedies.

Thus, the order did not prohibit layoffs of 

sworn personnel altogether. Cf. Schaefer v. 

Tannian, 538 F„2d 1234 (6th Cir. 1976)(dis­

trict court improperly enjoined layoff of 

male police officers; injunction against 
layoff of female officers was proper). It 

did not ban the layoff of all minority fire­

fighters. The order did not require any 

additional measures of affirmative action, 

or require that white firefighters be re­

placed by new minority hirees. It merely 

sought to preserve the remedial status quo 

achieved through the consent decrees in the 

face of an unexpected fiscal exigency, accord,

54



Bridgeport Guardians, Inc, v. Members of the 

Bridgeport C.S, Comm'n, 482 F.2d 1333, 1341 

(2d Cir. 1973); Detroit Police Officers 

Ass1n v. Young, 608 F.2d 671, 696 (6th Cir. 

1979), cert, denied, 452 U.S. 938 (1981), 

which threatened to frustrate the progress 

made under the consent decrees. It did not 

overbear "the interests of state and local 

authorities in managing their own affairs..." 

Milliken v. Bradley, 433 U.S. 267, 281 (1977).

The district court's reasonable mod­

ification of the consent decrees is not in­

valid simply because it involved suspending 

the operation of the city's last-hired, 

first-fired layoff proposal. The mere 

existence of a seniority-based layoff plan 

cannot diminish "the scope of a district 
court's equitable powers to remedy past 

wrongs.... for breadth and flexibility are 

inherent in equitable remedies." Swann v. 

Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 15 (1971). Nor is the scope of

55



the remedial power under §706(g) of Title 

VII, 42 U.S.C.A §2000e-5(g)(West 1981), 

limited or qualified by the Congressional 

policy expressed in §703(h) of Title VII,

42 U.S.C.A. §2000e-2(h)(West 1981), of pro­

tecting bona fide seniority systems from 

attack as discriminatory. Franks v. Bowman 

Transportation Co., 424 U.S. 747, 758-59

(1976) .

In flanks, this Court made clear that, 

in cases dealing with seniority systems, 

there is a significant "difference between 

a remedy issue and a violation issue," 

United Air Lines, Inc, v. Evans, 431 U.S. 

553, 559 (1977). The instant case does not 

challenge the Memphis seniority-based plan 
as discriminatory, clearly distinguishing 

this case from the situation presented in 

Teamsters v. United States, 431 U.S. 324

(1977) . Respondents, as well as the lower 

courts, focused exclusively on preserving 
the effectiveness of the remedy for the

56



initial violation, discriminatory hiring 

of minorities and women. See, Franks, 424 

U.S. at 758.

CONCLUSION

For the reasons stated above, amici 

respectfully submit that the judgment below 

should be affirmed.

Respectfully submitted,

Marsha Levick 
Judith I . Avner

Counsel of Record 
NOW Legal Defense and 

Education Fund 
132 West 43 Street 
New York, New York 10036 
(212) 354-1225
Attorneys for Amici Curiae

Counsel gratefully acknowledge the assis­
tance of Mayo Schreiber, Jr., Marcia Sells, 
Anne E. Simon, Noemi Bonilla, John Copoulos 
Siobhcin Cronin, and Lee G. Basher in the 
preparation of this brief.

57



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