Lawson v. United States of America Memorandum as Amicus Curiae Support of Petitioners

    No. 84-1999

I n the

j&uprrmr Court of %  luttrii i^tatra
Octobeb Teem, 1985

L ocal 93, I nternational A ssociation of F irefighters, 
AFL-CIO, C.L.O.,

Petitioner,
v.

•City of Cleveland, et at.

O N  W R IT  O F C ER TIO R A R I TO T H E  U N IT E D  STA TES 

C O U R T O F A P P E A L S  FO B  T H E  S IX T H  C IB C U IT

BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., NATIONAL ASSOCIATION 

FOR THE ADVANCEMENT OF COLORED PEOPLE, 
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., NATIONAL URBAN LEAGUE, INC., PUERTO 
RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., 
ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION 

FUND, INC., AND THE NEW JEWISH AGENDA

J ulius L. Chambers 
R onald L. E llis 
Clyde E. Mubphy 
P end a D. H aib 
E bic Schnapper*

NAACP Legal Defense and 
Educational Fund, Inc. 

Kith Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Amici
#Counsel of Record

(A complete list of counsel appears on p. ii)



QUESTIONS PRESENTED
(1) Are race conscious or numerical 

remedies necessary to redress, 
prevent or deter racial discrimi­
nation?

(2) Was the race conscious numerical 
remedy in this case reasonably framed 
to redress or prevent continuation of 
the alleged and admitted discrimi­
natory practices?

i



List of Counsel

Grover G . Hankins
National Association for 
the Advancement of Colored People 
186 Remsen Street 
Brooklyn, New York 11201

Antonia Hernandez 
Theresa Fay Bustillos 
Richard p. Fajardo

Mexican American Legal Defense 
and Educational Fund, Inc.
634 S. Spring Street 
11th Floor
Los Angeles, California 90014

Linda Flores 
Kenneth Kimerling

Puerto Rican Legal Defense 
and Education Fund, Inc.
99 Hudson Street
New York, New York 10013

Margaret Fung
Asian American Legal Defense 
and Education Fund 
99 Hudson Street 
New York, New York 10013

ii



Questions Presented ..............  i
List of Counsel ..................  ii
Table of Authorities .............  v
Interest of Amici ................  2
Summary of Argument ..............  2
Argument .......................... 5

I. Numerical Remedies Are at 
Times Necessary to Redress,
Prevent or Deter Discrimi­
nation .....................  5
A. The Remedial Experience

of the Lower Courts .... 5
B. The Justice Department 

Consent Decrees Relied 
on by the United
States .................  20

II. The Race Conscious Numerical 
Remedy In This Case Was 
Reasonably framed to Redress 
and Prevent Continuation of the 
Alleged and Admitted Dis­
criminatory practices ....  38
A. The Applicable Legal

Standards ..........   38

TABLE OF CONTENTS
Page

- iii -



P ag e

B. The Basis of the Disputed
Decrees ...........   52

Conclusion ..................    64
Appendix A: Justice Department

Consent Decrees .............  1a
Appendix B: Justice Department 

Consent Decrees:
"Expected" Hiring Rates ....  6a

Appendix C: Memorandum of Under­
standing Between City of 
Cleveland and Local #93,
International Association 
of Firefighters.............  8a

IV



TABLE OF AUTHORITIES

Cases:
Page

Association Against Discrimination 
v. City of Bridgeport,
594 F .2d 306 (2d Cir.}
1979) .............. ........ . 12

Berkman v. City of New York, 536 
F.Supp. 177 (E.D.N.Y.
1982) ....... ................ 14

Berkman v. City of New York,
705 F.2d 584 (2d Cir.
1982) ........................ 14,16

Bridgeport Guardians, Inc. v.
Civil Service Commission,
482 F.2d 1333 (2d Cir.
1973) ........................ 20

Carter v. Gallagher, 452 F.2d
315 (8th Cir. 1971 ) ......... 12,18

Commonwealth of Pennsylvania v. 
Rizzo, 13 FEP Cas., 1475 
(E.D. Pa. 1975) ............. 11

Commonwealth of Pennsylvania v. 
Rizzo, 13 FEP Cas. 1468 
(E.D. Pa. 1974) ............. 11,14

v



Page
Contractors Association v.

Secretary of Labor, 442 
P .2d 159 (3d Cir. 1971) ....  10

Ensley Branch, NAACP v. Seibels,
14 FEP Cas. 670 (N.D. Ala.
1977)    14

Ford Motor Co. v. EEOC, 458
U.S. 219 ( 1982) .......... 39

Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976) ---  17,53

Gladstone Realtors v.Bellwood,
441 U.S. 91 ( 1979) .......... 19

Griggs v. Duke power Co.,
401 U.S. 424 ( 1971 ) .......  13,15,17

Heat & Frost Insulators v.
Vogler, 407 F.2d 1047
(5th Cir. 1969) ............. 10

Kromnick v. School District of 
Philadelphia, 739 F.2d 894 
(3d Cir. 1984) .........   20

Luevano v. Campbell, 93 F.R.D. 68
(D.D.C. 1981)...............  14

Morgan v. O'Bryant, 671 F.2d
23 (1st Cir. 1982) .......... 20

Morrow v. Crisler, 491 F.2d
1053 ( 5th Cir. 1974) .......  8

vi



Page
NAACP v. Allen, 493 F.2d 614

(5th Cir. 1974)  ......... 8,12
NAACP v. Allen, 340 F.Supp. 703

(M.D. Ala. 1972) ............ 9
NAACP v. Beecher, 679 F.2d 969

(1 st Cir. 1982 ) ........ ..... 20
Ostapowicz v. Johnson Bronze Co.,

12 FEP Cas. 1230 (W.D.
Pa. 1974) .............. 1 1

Ostapowicz v. Johnson Bronze Co.,
541 F .2d 394 (3d Cir.
1976) .................. . 1 1

Reed v. General Motors Corp.,
703 F.2d 170 (5th Cir.
1983) ........................ 40

Reed v. Lucas, 11 FEP Cas. 153
(E.D. Mich. 1975) ........... 14

Rogers v. Paul, 382 U.S. 198
(1965) ....................... 18

Sosna v. Iowa, 419 U.S. 393
(1975).................   13

Taylor v. Jones, 495 F.Supp. 1285
(E.D. Ark. 1980) ............ 12,13

Teamsters v. United States, 431
U.S. 324 ( 1977)..............  16,17

Trafficante v . Metropolitan Life 
Insurance Co., 409 U.S.
205 ( 1972) ..................  19

Vll



P a g e

United States v . Fairfax County,
No. 78-362-A (E.D. Va.) ..... 25,35

38,41
United States v. Lee Way Motor

Freight, Inc., 625 F .2d 918 
( 10th Cir. 1979) ............ 10

United States v. Montgomery
County Board of Education,
395 U.S. 225 (1969) .... . 24

United States v. Nassau County,
Civ. No. 77-C-1881
(E.D.N.Y.)   25,35,38,41

United States v. Opeating 
Engineers, 4 FEP Cas.
1988 (N.D. Cal. 1972) ....... 11

W.R. Grace & Co. v. Local 759,
461 U.S. 757 (1983) ......... 44,51

Williams v. City of New Orleans,
543 F.Supp. 662 (E.D.
La. 1982)     11

Williams v . Vukovich, 720 F.2d
909 (6th Cir. 1983) .........  20

Other Authorities
Title VII, Civil Rights

Act of 1964 ................  passim

v m



Section 706(g), Title VII.......  5
Fourteenth Amendment, U.S.

Constitution ...............  7
S. Rep. No. 94-415 ( 1971 ) .....  20
H.R. Rep. No. 92-238 (1971) ....  20

Page

- ix -



No. 84-1999
IN THE

SUPREME COURT OP THE UNITED STATES 
October Term, 1985

LOCAL 93, INTERNATIONAL ASSOCIATION 
OF FIREFIGHTERS, et al.,

Petitioners,
v .

CITY OF CLEVELAND, et al . ,

On Writ of Certiorari to the 
United States Court of Appeals for the 

Sixth Circuit

BRIEF AMICUS CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., 
NATIONAL ASSOCIATION FOR THE ADVANCEMENT 
OF COLORED PEOPLE, MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., 
NATIONAL URBAN LEAGUE, INC., PUERTO RICAN 
LEGAL DEFENSE AND EDUCATION FUND, INC., 
ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION 
FUND, INC., AND THE NEW JEWISH AGENDA



2

INTEREST OF AMICI*

The interest of amici are set forth 
in our brief in Local 28, Sheet Metal 
Workers v. EEOC, No. 84-1656.

SUMMARY OF ARGUMENT
I. Over the last two decades 

federal district judges have repeatedly 
concluded that, on the specific facts of 
the circumstances before them, numerical 
remedies were necessary to redress, 
prevent or deter discrimination. The 
decisions to adopt such numerical remedies 
have reflected an intensely practical 
response to persistent discrimination by 
often intrasigent defendants. These 
numerical remedies have been utilized in

* Letters from the parties consenting to 
the filing this brief have been filed 
with the Clerk.



3

six categories of cases; in each instance 
they served to assure redress for past 
victims, or to prevent or deter discrimi­
nation or further harm to future victims.

The Solicitor General describes as 
paradigms of "non-quota" relief 33 Justice 
Department consent decrees. in fact, 
however, these decrees are replete with 
numerical remedies. The numerical 
provisions contained in Justice Department 
decrees include the following;(1) orders 
specifying that a particular number of 
rejected applicants will receive pref­
erential hiring treatment, (2) orders 
setting a numerical ceiling on the number 
of persons entitled to "preferential job 
offers" that a defendant need actually 
hire, (3) orders setting specific per­
centages of blacks, Hispanics, Indians or 
women that a defendant is required to 
recruit and "expected" to hire, (4) orders



4

requiring that the percentage of minpri- 
ties hired on the basis of a non-job 
related test shall be the same as the 
percentage of minorities taking that test. 
The use of such orders makes clear that 
even the Justice Department recognizes 
that numerical remedies are at times a 
practical necessity.

II. We agree with the Solicitor 
General that the parties to a Title VII 
action may resolve by settlement both the 
merits of that action and the identity of 
the individuals who are to benefit from a 
consent decree. In weighing a proposed 
decree a court need not and should not 
conduct a trial to determine either the 
merits of the case of the identities of 
the victims of any discrimination. A 
consent decree should be approved so long 
as the type of relief it provides, and the 
method for selecting the beneficiaries of 
the decree, are reasonable.



5

In this case the petitioner union 
actually helped to draft the provisions of 
the decree specifying the designated 
beneficiaries of the injunctive relief. 
Petitioner subsequently objected that the 
decree was a "quota", but never contended 
that the decree should have designated 
different beneficiaries. In light of the 
wide variety of discriminatory practices 
alleged in the complaint, the group 
designated as eligible to benefit from the 
decree -- minority firefighters hired 
prior to December 1982 —  was reasonable.

ARGUMENT
I. NUMERICAL REMEDIES ARE AT TIMES 

NECESSARY TO REDRESS, PREVENT OR 
DETER DISCRIMINATION__________
A . The Remedial Experience of the 

Lower Courts

Section 706(g) gives federal courts 
broad authority to enforce Title VII 
because Congress correctly anticipated



6

that the enforcement of Title VII would 
involve exceptionally difficult remedial 
problems. Although many employers and 
unions voluntarily complied with federal 
law, others embarked on protracted and 
intransigent efforts to keep their 
employees or members all-white or all­
male. General injunctions which merely 
parroted the language of Title VII itself 
had little if any impact on such defen­
dants. Such massive resistance to the 
requirements of Title VII sorely tested 
the patience, resolve and ingenuity of 
federal judges responsible for enforcing 
the law. Correcting violations by 
non-intransigent defendants also posed 
complex practical problems.

The use of race conscious and 
numerical remedies emerged over a period 
of years as federal judges continued to be 
confronted by circumstances in which other 
remedies proved insufficient to promptly



7

redress, prevent or deter violations of 
1

Title VII. The use of those remedies 
emerged as a pragmatic judicial response 
to the complex and often intractable 
problems that arose in enforcing Title 
VII.

Because race conscious and numerical 
remedies were developed to deal with a 
variety of types of violations and 
defendants, those remedies have not taken 
any single form. Such remedies have 
differed significantly in their purpose, 
terms, and duration. The diversity of 
race conscious and numerical remedies 
which the lower courts have devised 
reflects a similar diversity in the 
practical problems that have arisen in

A number of the cases described in this 
section involve constitutional rather than 
Title VII claims. Where intentional 
discrimination is involved in a Title VII 
case the practical remedial problems are 
similar to those in a Fourteenth Amendment
case



8

implementing Title VII. We set out below 
a brief summary of the types of circum­
stances in which federal courts have 
concluded that race conscious or numerical 
orders were necessary to redress, prevent 
or deter violations of Title VII:

(1 ) The earliest race-conscious 
numerical orders were framed to deal with 
employers and unions whose past inten­
tional violations of Title VII were so 
egregious as to make clear that they 
simply would not obey a general injunction 
against discrimination. Such compliance 
orders were issued in NAACP v. Allen, 493 
F . 2d 614 (5th Cir. 1974), and Morrow v. 
Crisler, 491 F.2d 1053 (5th Cir. 1974) (en 
banc), only after prior injunctions, 
forbidding discrimination and requiring 
affirmative recruitment efforts, had 
proved ineffective in ending illegal 
conduct. In NAACP v. Allen, for example.
almost two years after the issuance of



9

such a detailed injunction containing no 
numerical remedies, the Alabama state 
police still had not hired a single black. 
340 F.Supp. 703, 705 (M.D. Ala. 1972). 
Where a defendant is determined to 
continue to violate the law, a general 
injunction against discrimination provides 
a plaintiff no remedy at all, but only an 
opportunity to return to court at a later 
date to prove that the defendant had found 
some new method to exclude minorities or 
women. Numerical compliance orders were 
effective in such situations because they 
deterred a wide range of discriminatory 
practices, not by attempting to enumerate 
them all, but by forbidding the effect —  
the hiring or promotion of few if any 
minorities or women -- that would result 
from any type of systematic discrim­
ination. Such an order shifted from the 
court and plaintiff to the defendant the



10

burden of identifying and correcting
specific discriminatory practices or 

2
officials.

(2) In a variety of circumstances 
district courts have concluded that proven 
discrimination was the inevitable result 
of the race or sex of individuals holding 
key positions in a company or union, and 
that prompt and certain eradication of 
continuing discrimination required an 
alteration of the group of individuals who 
played a critical role in personnel 
actions. Procedure neutralization orders 
were thus issued directing that specified

See e.g., Heat & Frost Insulators v. 
Vogler, 407 F.2d 1047, 1055 f5th Cir.
1969)(numerical order necessary to prevent 
"subversion of the purpose of the in­
junction"); United States v. Lee Way Motor 
Freight, Inc., 625 F.2d~918, 944-45 (10th 
Cir. 1 979)(numerical order necessary to 
"prevent possible repetition of the long 
and arduous lawsuit with which we are now 
involved"); cf. Contractors Association v. 
Secretary of Labor, 442 F.2d 159, 173, 177 
(3d Cir.) (Philadelphia Plan necessary to 
end discrimination by federal contrac­
tors), cert. denied 404 U.S. 854 (1971).



numbers of minorities or females be
included among officials responsible for

3
recruiting new applicants, considering

4
appeals of rejected applicants, training

* 5
newly hired workers, and, more broadly,

6
evaluating all hiring and promotions.
Such orders were upheld as "an effective

7
method to prevent future discrimination". 
Several circuits concluded that in some 
situations the unlawful deterrent effect 
of an employer's well deserved reputation 
for discrimination could only be dis­
sipated by a court ordered increase in the

Commonwealth of Pennsylvania v. Rizzo, 13 
FEP Cas. 1475, 1483 (E.D. Pa. 1975).

Williams v. City of New Orleans, 543 F. 
Supp. 662, 682 (E.D. La. 1982), aff'd 729 
F . 2d 1 554 ( 5th Cir. 1984) (en banc) ;
United States v. Operating Engineers, 4 
FEP Cas. 1088, 1097 (N.D. Cal. 1972) .
Ostapowicz v. Johnson Bronze Co., 12 FEP 
Cas. 1230, 1232 (W.D. Pa. 1974).

7 Ostapowicz v. Johnson Bronze Co., 541 F.2d 
394, 402 (Id Cir. 1976).



12

number of minority or female employees. 
In Taylor v. Jones, 495 F.Supp. 1285 (E.D. 
Ark. 1980), aff'd, 653 F.2d 1193 (8th Cir. 
1981), the black plaintiff had been driven 
from her position as one of the Arkansas 
National Guard's few minority workers by a 
long history of racial harassment. The 
trial court held that full relief required 
more than an order reinstating Taylor in a 
job involving the same "appalling condi­
tions." 495 F.Supp. at 1294. The judge 
found that, at the offices of the Guard,

as the environment approaches a 
fairer racial representation, the 
degree of racism tends to dimin­
ish.... [plaintiff] has standing not 
only to seek reinstatement, but to 
seek reinstatement in a work place 
where all people are treated with 
decency and respect. The Court finds 
that this goal will be materially 
impeded unless the Arkansas National 
Guard is required to step up its 
employment of qualified black

8

Association Against Discrimination v. City 
of Bridgeport, 594 F.2d 306, 311 n. 13 
(2d Cir. 1979) ; NAACP v. Allen, 493 F.2d 
at 617-21; Carter v. Gallagher, 452 F.2d 
315, (8th Cir. 1971).

8



1 3

persons.... There simply is no other 
way to ensure that the law will be 
complied with in the future.

9
495 F.Supp. at 1294. Accordingly, the

<
district court imposed a numerical hiring 
order.

( 3) Griggs v. Duke Power Co., 401
U.S. 424 (1971 ), forbids the use of a 
test or other employment selection 
procedure that has an adverse effect on 
minorities or women, unless that test or 
procedure is demonstrably job related. In 
a case where a court has declared a 
disputed test unlawful, the fashioning of 
a new test that will be job related is 
often a time consuming task. While such 
an examination is being developed, an 
employer may well need to continue hiring 
or promoting additional employees. In the 
case of public agencies, particularly

See also Sosna v. Iowa, 419 U.S. 39 3, 414 
n.1 (197T) (white, J., dissenting).

9



police and fire departments, continued
hiring and promotions are often vital to
the safety of the community. in such
situations, pending the development and
approval of a new test, courts have issued
test neutralization orders, permitting the
use of the old test provided that it is
utilized in such a way as to avoid any
illegal adverse impact on minorities or
women. Ordinarily this is done by hiring
or promoting a number of minorities or
women commensurate with the proportion of
minorities or women who took the illegal 

1 0
test. Such test neutralization orders, 
like compliance orders and procedure

-  14 -

See, e.g., Berkman v. City of New York, 
536 F.Supp. 177, 216-18 (E.D. N.Y. 1982), 
aff'd 705 F. 2d 584, 595-97 (2d Cir. 1982); 
Ensley Branch, NAACP v. Seibels, 14 FEP 
Cas. 670, 686-87 (N.D. Ala. 1977); Common­
wealth of Pennsylvania v. Rizzo, 13 FEP 
Cas. 1468, 1474 (E.D. Pa. 1974); Reed v. 
Lucas, 11 FEP Cas. 153, 155-56 (E.D. 
Mich. 1975); Luevano v. Campbell, 93 
F.R.D. 68, 79-80 (D.D.C. 1981).



15

neutralization orders, protect potential 
victims of discrimination from future 
violations of the law.

(4) In some cases numerical orders 
are necessary to identify the individuals 
entitled to redress for past discrimi­
nation. This can occur in a variety of 
ways. In the case of a Griggs violation, 
a test is only unlawful because it has an 
adverse effect on minorities or women, 
eliminating a disproportionate number of 
them from consideration for employment or 
promotion. Thus the difference between 
the number of minorities or women promoted 
or hired and the number who would have 
been promoted or hired had there been no 
adverse impact will at times be the most 
appropriate measure of the number of 
victims. A numerical order must therefore



16

be used in such situations to calculate
the number and thus determine the identity

11
of the individuals entitled to relief.

The method of discrimination utilized 
by an employer may obscure the identities 
of the victims of that violation, particu­
larly where the employer is successful in 
discouraging minorities or women from 
applying for the disputed positions. 
Teamsters v. United States, 431 O.S. 324, 
365 ( 1 977), provides that in a case of
systematic discrimination all rejected 
individuals, and all those who were 
deterred from applying, are to be treated 
as victims unless the defendant can prove 
otherwise. A mechanical application of 
Teamsters, however, could lead a court to 
identify as victims a number of individ­
uals substantially in excess of the actual 
number of vacancies that were the subject

^  See, e.g., Berkman v. City of New York, 
705 F .2d at 596-97.



17

of the original violation, especially 
where there were large numbers of rejected 
or deterred applicants. For that reason 
courts have attempted to estimate, as 
accurately as circumstances may permit, 
the number of minorities or women who 
would have been hired or promoted but for 
the proven discrimination. Here, as in 
the case of a Griggs violation, the use of 
such a victim identification order is 
essential to framing redress that is fair 
to whites and males as well as to the 
arguable victims.

( 5) Under Teamsters and Franks v. 
Bowman Transportation Co., 424 U.S. 747 
(1 976), the victims of a past act of 
discrimination are ordinarily entitled to 
an absolute priority in appointment to 
whatever positions were unlawfully denied 
at an earlier time. In some instances, 
however, the process of identifying those 
victims is a difficult one. Because of



18

the unavoidable uncertainty in those cases 
as to whether the group which will benefit 
from the decree is precisely the same as 
the group of past victims, courts have 
upon occasion reduced the degree of 
preference accorded to those beneficia­
ries. Thus, instead of the normal
practice of setting aside all vacancies 
for past victims, only 33% of future 
vacancies were set aside for the benefi­
ciaries of the decree in Carter v. 
Gallagher, 452 F.2d 315, 331 (8th Cir.
1971). Such numerical orders have the 
effect of delaying the date on which 
victims are returned to their rightful 
places in the workforce.

(6) This Court has repeatedly noted 
that acts of discrimination can injure 
indirect as well as direct victims. In 
Rogers v. Paul, 382 U.S. 198, 200 (1965), 
the Court held that black students were 
entitled to challenge racial discrimina­



19

tion in faculty personnel policies, noting 
that such discrimination inherently denied 
black students equality of educational 
opportunity. The Court has twice recog­
nized that housing discrimination can 
injure, not only blacks denied access to 
homes and apartments, but also the 
existing residents, black and white, of 
the neighborhoods involved. Gladstone 
Realtors v. Bellwood, 441 U.S. 91, 100-02 
(1979); Trafficante v. Metropolitan Life 
Insurance Co., 409 U.S. 205, 208-12 
(1972). Congress amended Title VII in 
1972 to prohibit employment discrimination 
by public agencies precisely because it 
too was concerned about the indirect 
victims of discrimination; the House and 
Senate reports emphasized that an all- 
white agency workforce resulting from such



20

discrimination is likely to harm minority
citizens who deal with and depend on the

12
agency involved.

The lower courts have repeatedly 
found that past racial discrimination in 
the selection of public employees, 
particularly teachers, firefighters, and 
police officers, causes ongoing harm to 
the public, especially non-white citi­
zens, even after that discrimination may 

13
have ended. These findings have not been 
premised on any view that only minority 
employees should service minority citi­
zens, a view which amici expressly

12 S.Rep. No. 94-415, 10 (1971); H.R. Rep. 
No. 92-238, 17 ( 1971 ) .

1 *3 See e.g., Kromnick v. School District of 
^Philadelphia, 739 F.2d 8~94~, 904-06 (3d 
Cir. 1984)(teachers); Morgan v. O'Bryant, 
671 F .2d 23, 27 (1st Cir. 1982)
(teachers); NAACP v. Beecher, 679 F.2d 
965, 977-78 (1st cir. 1982T 7  vacated 461 
U.S. 477 (1983) (firefighters); williams 
v. Vukovich, 720 F.2d 909, 923-24 (6th 
Cir. 1983)(police officers); Bridgeport 
Guardians, Inc. v. Civil Service Commis- 
sion, 482 F.2d 1333, 1341 (2d Cir. 1973).



21

disavow. Rather, the courts have recog­
nized that an agency policy of discrimi­
nation in employment can foster a similar 
agency policy of discrimination, brutality 
or insensitivity towards the group 
excluded from employment.

Such continuing injuries to indirect 
victims might readily be ended if the 
original direct victims could be found and 
placed in the agency involved. But often, 
especially in the case of hiring discrimi­
nation, the forms of unlawful conduct 
utilized by an employer make it impossible 
to locate the original direct victims. 
Even where those direct victims can be 
found, they are likely to have found 
other work and no longer want the position 
which was originally unlawfully denied.

Where, for either reason, it is 
impracticable to restore the original 
direct victims to their rightful places, 
the failure to do so leaves the indirect



22

victims subject to the same continuing 
injuries that were occasioned by the 
original act of discrimination. in such 
cases the lower courts have recognized 
that the indirect victims were entitled to 
a remedy that would bring an end to those 
continuing injuries by eliminating the 
effect of past discrimination on the 
racial composition of the public agency's 
workforce. Such remedies, which benefit 
the indirect although not the direct 
victims of the Title VII violation, are at 
times race conscious or numerical in 
nature.

We do not, of course, suggest that 
every district court order regarding 
numerical or race conscious remedies has 
necessarily been correct. Some of these 
orders may have been needlessly stringent, 
while others may not have been sufficient­
ly strong. The appropriateness of each 
order turned, at least in part, on the



23

nature of the particular violation 
involved. The overall pattern of judicial 
decrees, however, makes clear that federal 
judges under a wide variety of circum­
stances have found such remedial measures 
to be a practical necessity.

We recognize that it may often be 
possible to promptly redress, prevent and 
deter violations of Title VII without 
resort to either numerical or race 
conscious remedies. Where such remedies 
are needed, courts will at times be 
required to strike a difficult balance 
between assuring, on the one hand, that 
violations of Title VII are effectively 
and promptly redressed, prevented and 
deterred, while seeking to minimize, on 
the other hand, the extent to which 
achieving these ends may adversely affect 
the interests of whites or men who may not 
have benefitted from past acts of discri­
mination. A certain amount of trial and



24

error may be unavoidable, since a resolu­
tion of these issues often requires a 
court to predict how a defendant or others 
will act in the future. But where a court 
concludes that a numerical order is the 
most effective way to redress, prevent or 
deter discrimination, the court need not 
and should not experiment first with 
alternatives it believes to be less 
efficacious. District courts must
exercise considerable flexibility in 
administering Title VII remedies, relaxing 
the terms of decrees which time has shown 
to be unrealistic, or strengthening 
decrees that have proven ineffective. 
United States v. Montgomery County Board 
of Education, 395 U.S. 225, 234-38 (1969).

B. The Justice Department Consent 
Decrees Relied o n b y  the United 
States

The Solicitor General, in arguing 
that remedies he characterizes as "quotas"



25

are never necessary, relies heavily on 33
Title VII Justice Department consent 

14
decrees, which the Solicitor describes as 
involving "exclusively victim-specific 
relief." (U.S. Amicus Br., 29-30) The 
Solicitor emphasizes in particular the 
consent decrees in United States v. 
Fairfax County, No. 78-862-A (E.D. Va.)
and United States v. Nassau County, Civ. 
No. 77-C-1881 (E.D.N.Y.). These decrees, 
the Solicitor urges, demonstrate that it 
is possible to formulate effective 
remedies without resort to "quotas".

Whatever the Solicitor may mean by 
the term "quota" in this context, one 
thing is indisputable. The very consent 
decrees which the Solicitor asserts 
illustrate the non-necessity of "quotas" 
are in fact replete with numerical

P4 1A list of the decrees on which the 
government relies is set out in Appendix A 
to this brief. The decrees are cited in 
this brief by the name of the defendant.



26

remedies. We have lodged copies of the 

decrees in Fairfax County and Nassau 
County with the Clerk. The race conscious 

numerical remedies contained in these 

decrees, and which the Justice Department 

apparently regarded as essential to 
framing effective relief in those cases, 

include the followings
( 1 ) The Nassau County decree uses a 

numerical order to designate the individ­
uals who would be entitled to claim 
priority job offers. Paragraphs 60-71 of 
that decree were framed to provide redress 
for blacks and Hispanics denied jobs on 
the basis of an allegedly unlawful test. 
Although approximately 220 blacks had been 
rejected because of their test scores, 
paragraph 69 authorized relief only for 
"the seventy-seven (77) highest-scoring 
blacks and Hispanics.88 Although this 
numerical order is not explained in the 
decree, it roughly corresponds to the



27

percentage of white test-takers who scored 
high enough on the test to be eligible to 
be hired.

(2) The Solicitor asserts that the 
Fairfax decree provides "priority job 
offers to 650 claimants" (U.S. Amicus Br. 
29) , and that decree does indeed list by 
name over 650 claimants entitled to 
"priority job offers". (1[ 9, App. B) . But 
the decree also sets a numerical ceiling 
of 107 on the number of claimants whom the 
county must actually hire. (II 11 , App. 
E). Once the ceiling has been reached, 
none of the remaining individuals entitled 
to "priority job offers" are to get such 
offers at all. Similarly, the Nassau 
County decree identified 77 minorities and 
141 females who were entitled to what the 
decree called "priority job offers", 
provided they met certain other require­
ments. (I111 34, 39, 40, 43, 44, 45) But
the defendant did not have to actually



28

hire all of those entitled to priority job
offers. Rather, the decree provided that
Nassau County was actually obligated to
hire only 29 of the minorities and 65 of
the women entitled to "priority job
offers", even if a larger number qualified
and accepted those offers. (If 11 46(d),
71(d)). Similar absolute numerical
ceilings are utilized in a number of other
consent decrees relied on by the 

1 5
Solicitor.

Anne Arundel Decree, 11 22(d), App. I (135 
listed individuals, 15 jobs); Jefferson 
County Decree, Iff 38, 39, 46 App. C, D, 
~E~, F7 L (754 individuals, 102 jobs); 
Little Rock Decree, f 17(a), App. B (79 
individuals, 20 jobs); Maricopa Decree, Iff 
14(b)(1), 15 (a) (306 individuals, 18 
jobs); Georgia Department of Transporta- 
tion Decree, f 23, App. I (ceiling of 68 
jobs); Georgia Forestry Commission Decree , 
f 23, App. 6 (ceiling of 34 jobs); Georgia 
Department of Natural Resources Decree, f 
22, App. F (ceiling of 20 jobs); Georgia 
Department of Public Safety Decree, f 23, 
App. F (ceTring of 121 ]obs).



29

(3) Both the Nassau County and 
Fairfax County decrees contain implement­
ing numerical orders which provide that 
certain claimants, rather than receiving 
an absolute job priority, are to be phased 
in on a numerical basis. Under the Nassau 
County decree not all females receiving 
priority job offers were entitled to the 
next available vacancies; the decree 
specifies that the County is obligated to 
set aside only 30 seats in each recruit 
class for such individuals. Under the 
Fairfax County decree vacancies in certain 
jobs are all set aside for claimants; in 
other jobs, however, the decree specifies 
that the individuals entitled to priority 
job offers can claim only 50% of the 
vacancies, or only a proportion of the 
vacancies equal to the proportion of 
minorities in the relevant work force. (H 
1 2 ) .



30

(4) The Fairfax County decree deals 
with alleged hiring discrimination 
involving a wide range of county jobs, 
including police,, firefighter and clerical 
provisions. The decree does not, however, 
attempt to match claimants with the 
particular position that was unlawfully 
denied. Rather, the decree places all 
claimants in a single pool, and gives 
them an equal right to priority considera­
tion for certain vacancies. Those 
vacancies are set out in a separate 
Appendix to the decree, which allots a 
specific number of vacancies "by job 
category, race and sex" to this group. (f 
llB) .

(5) The Nassau County decree 
contains two test neutralization orders, 
requiring that if certain non-job related 
tests are utilized for additional hiring 
or promotion they will be used in a manner 
"without adverse impact upon blacks,



31

Hispanics and females." (1M| 8(a), 11).
The evident meaning of these paragraphs is 
that the proportion of blacks, Hispanics 
or women selected for hiring or promotion 
on the basis of the test must be the same 
as the percentage of blacks, Hispanics or 
women who actually took the disputed test.

(6) The Nassau County decree
contains several numerical provisions
regarding general hiring and promotion
practices. (a) Paragraph 15 requires the
county to take all reasonable steps to
assure that, among qualified applicants
for sworn positions, at least 20% are
black or Hispanic, and at least 25% are 

16
female. paragraph 16 in turn directs the 
county to select from this pool in a "fair 
and nondiscriminatory" manner, and recites 
that " [ i ] t is the expectation of the

16 The specific percentages are incorporated 
by reference to certain discovery ma­
terial .



32

parties" that, if the county obeys that
requirement, the number of minorities and
women actually hired will "approximate
their proportions in the pool of qualified
applicants". (b) Paragraph 23 requires
the county to take all reasonable steps to
assure that, among qualified applicants
for non-sworn entry-level positions, at
least 20% are black or Hispanic. Paragraph
25 states that the county

shall fill all non-sworn entry-level 
positions... with qualified blacks and 
Hispanics ... at levels which approxi­
mate their interest in and ability to 
qualify for those positions....

(Emphasis added).
Paragraphs 16 and 23 do not specify 

what steps the county is to take to assure 
that the hiring of minorities and women is 
at the specified level. Paragraph 18 
contains the following gloss:

[T] he recruitment and appointment 
objectives ... are not and shall not 
be treated as quotas.... [T]he 
adoption and implementation of the 
appointment objectives ... do not



33

obligate Nassau County to ... grant a 
preference to a less-qualified person 
over a more-qualified person, where 
qualifications are measured by 
selection procedures and criteria 
which have been validated in accord­
ance with the Uniform Guidelines.

Paragraph 18, read literally, does not 
disavow an intent to require racial 
preferences among equally qualified 
applicants, or among applicants for whom 
the county has no validated job-related 
ratings.

Among the decrees relied on by the 
Solicitor, nine others have similar 
provisions, specifying precisely the 
minimum level of minority or female 
applicants to be recruited, and announcing 
an expectation that compliance with the 
decree will result in hiring at that 
level. We set forth the decrees, and 
specified percentages, in Appendix B to 
this brief. Four decrees require that, 
where internal promotions are made, the



34

defendant will " insure" that the propor­
tion of qualified minority or female 
applicants is the same as in the pool of 
eligible employees, and recite an "expec­
tation" that the actual number of pro­
motions will be proportionate to the
number of qualified minority or female 

17
applicants. All of these decrees contain 
a disavowal insisting that the decree is 
not a "quota"; in most instances the 
language is the same as paragraph 18 of 
the Nassau County decree. The apparent 
effect of these disavowals is that, even 
though a defendant may find, as a practi­
cal matter, that preferential actions are 
necessary to meet the expected levels of 
hiring or promotions, the United States 
disavows, to some extent, legal responsi­
bility for such actions.

i 7 Indiana Decree, 1f 6; Jefferson County 
{"cities') Decree, 1 11; Jefferson County 
Decree, 1[ 14; North Little Rock Decree, ff 
7, 8.



35

(7) Although the Fairfax and Nassau
County decrees appear to be fairly
representative of the government decrees
on which the Solicitor relies, some
provisions found only in other decrees are
worthy of note. Five decrees require that
specified numbers of minorities or women
be employed as recruiters of minorities or

18
women, respectively. The Farmington 
decree sets specific interim hiring goals 
for particular jobs for Indians, Hispanics 
and women; blacks and Asians are to be 
counted as either Indian or Hispanic. 
(11 8). The Burling ton decree requires the 
city to provide counseling services 
"dedicated to the problems of women". 
(11 16) The North Little Rock decree 
provides that minority and female trainees 
"shall be assigned to work shifts in a

Anne Arundel Decree, 1(11; Indiana Decree,
I  51 Little Rock Decree, 1! 14; North
Little Rock Decree, 1| 15; Virginia Decree,
II 1 2 ( c ) .



36

manner which offers them the opportunity
for support and consultation with other
minority or female trainees and experi-

19
enced officers."

The numerical and race conscious 
provisions of these decrees are important 
for two distinct reasons. They demon­
strate, first, that the Department of 
Justice, despite its frequently artic­
ulated opposition to what it labels 
"quotas", continues to regard numerical 
remedies as essential for the framing of 
Title VII decrees. Second, the Solicitor 
General, despite the broad language of his 
brief denouncing "quotas", may not in fact 
be seeking a decision of this Court 
prohibiting all forms of numerical relief, 
since the very decrees which the Solicitor 
points to as models of non-quota remedies 
are in fact replete with numerical

19 11 1 6 y .



37

provisions. It is difficult to believe 
that the government is urging the Court to 
adopt an interpretation of Title VII which 
would invalidate the very decrees which 
the United States characterizes as 
paradigms of appropriate Title VII relief.

The Solicitor does not explain the 
basis on which he would distinguish the 
numerical provisions described above from 
those numerical devices which he denounces 
as "quotas". Because numerical remedies, 
including those in Justice Department 
decrees, serve a wide variety of purposes, 
it would not be difficult to imagine any 
number of different rules which would 
sanction some but not all numerical 
measures. But such rules cannot be 
grounded on the Title VII legislative 
history relied on by the Solicitor. The 
congressional comments regarding quotas 
are simply too vague to account for a 
distinction, for example, between the



38

numerical remedies in the Nassau and 
Fairfax decrees and the numerical remedies 
at issue in the instant litigation. We 
readily acknowledge that not all forms of 
numerical remedies are appropriate in 
every case, and that there are cases in 
which no numerical remedies at all would 
be justified. But the distinctions among 
the remedies, numerical or otherwise, 
warranted in each case must turn on the 
nature of the discriminatory practices 
there at issue, not on any congressional 
intent to bar all types of numerical 
remedies regardless of whether they might 
be needed to redress, prevent or deter 
violations of Title VII.
II. THE RACE CONSCIOUS NUMERICAL REMEDY

IN THIS CASE WAS REASONABLY FRAMED TO 
REDRESS AND PREVENT CONTINUATION OF 
THE ALLEGED AND ADMITTED DISCRIMI­
NATORY PRACTICES

A. The Applicable Legal Standards 
The United States, although objecting



39

to the decree in this case, sets forth two 
general principles with which we concur. 
First, the United States asserts that a 
Title VII consent decree does not require 
either a judicial finding of discrimina­
tion, or a concession by the defendant 
that such discrimination occurred. (U.S. 
Amicus Brief, pp. 28-29). That conclusion 
is compelled by the clearly expressed 
congressional preference for voluntary 
resolution of Title VII litigation. Ford 
Motor Co. v. EEOC, 458 U.S. 219, 228 
(1982). If defendants could not settle a 
Title VII claim without either publicly 
confessing that they had violated the law, 
or submitting to a plenary trial and 
judicial resolution of the liability 
issues, no employer would ordinarily agree 
to settle employment discrimination 
claims; voluntary resolution of such 
disputes, which Congress preferred, would 
be virtually impossible. In all other



40

areas of the law litigation can be settled 
without the need for proof or admission 
of culpability; Congress clearly did not 
intend to thwart the settlement of race 
and sex discrimination claims with 
obstacles which are never imposed on other 
litigants or cases. In any area of the 
law a court, in deciding whether to 
approve a proposed settlement as rea­
sonable, should consider the strength of 
the plaintiff's claims, Reed v. General 
Motors Corp. , 703 F.2d 170 (5th Cir.
1983); but that assessment should not lead 
to a full dress trial of the merits of the 
case.

The United States also asserts, 
correctly in our view, that the parties to 
a Title VII litigation may resolve by 
settlement the issue of which minorities 
or women were, or but for the decree 
would become, direct or indirect victims 
of discrimination. Such a settlement, the



41

government suggests, may either designate 
the beneficiaries of the decree by name, 
or establish criteria to be utilized by 
the parties to designate those indivi­
duals. (U.S. Amicus Brief, pp. 28-29 and 
n . 2 5) . There need not be a judicial 
determination that each beneficiary had 
been, or would be, a victim of discrimina­
tion, and the defendants need not concede 
that any individual was or would be a 
victim. The Justice Department consent 
decrees referred to at p. 29 of its brief 
never use the term "victim" to describe
the individuals to receive benefits under 

20
those decrees.

The decree in United States v. County of 
Fairfax refers to those incTiv iduals as 
"claimants" . Consent Decree, 1M| 611. The 
decree in United States v. Nassau County 
refers to those Tnd’fvi<J"uaIs lay referring 
to the paragraph of the decree which 
establishes the criteria for selecting 
them. Consent Decree, 1M| 44-45, 58-59, 
70-71 .



42

If, as Congress intended, negotiated 
settlement is to remain a viable method 
for resolving Title VII litigation, the 
parties must be permitted to resolve by 
settlement the identities of the minori­
ties or women to receive affirmative 
relief under such settlements. The relief 
that may be encompassed within a consent 
decree must be at least as broad as that 
which a plaintiff could win at trial. Any 
settlement, regardless of whether or not 
it involves numerical relief, may affect 
the interests of white or male employees. 
For that reason a court asked to approve a 
decree should provide interested indi­
viduals, including affected whites, an 
opportunity to be heard, and should care­
fully consider any objections which may be 
advanced, including objections by whites 
whose interests may be affected by the 
decree. But in assessing those objections 
a court need only inquire whether the



43

forms of relief or the designation of 
beneficiaries, depending on which may be 
challenged, are reasonable. Title VII 
neither requires nor authorizes such a 
court to conduct a trial to determine 
either the merits of the claims or the 
identities of the individuals who would 
have been entitled to relief in a fully 
litigated and adjudicated case.

The Solicitor General also appears to 
assert that even a so-called "victim 
specific" consent decree must be rejected 
if a court believes that the proposed 
decree conflicts with an applicable 
collective bargaining agreement. (U.S. 
Amicus Br. , pp. 24-27). In this case, of 
course, the union never argued below that 
there was any such conflict. Had such an 
argument in fact been presented, the 
district court could not have resolved 
that objection without interpreting the 
collective bargaining agreement. But the



44

Memorandum of understanding provides that
the grievance and arbitration procedure
established by the Memorandum "shall be
the exclusive method off reviewing and

settling disputes" about the meaning of
21

the Memorandum. Part of the agreement
thus bargained for and agreed to by the
city and union is that an arbitrator, and
only an arbitrator, is to resolve any
issues regarding the interpretation of the
Memorandum. W.R. Grace & Co. v. Local
759, 461 U.S. 757 (1983), makes clear that
in a case such as this the federal courts
should not usurp the role which the
signatories to a collective bargaining
agreement have agreed will be played by an 

22
arbitrator. 461 U.S. at 761-66. In this 
__ —

Memorandum of Understanding, Article XI:
The relevant portions of the Memorandum 
are set forth in Appendix C to this brief.

p p Judicial interpretation of such an 
argument might be appropriate under other 
circumstances, such as where the signa­
tories all agreed that a court, rather 
than an arbitrator, could interpret the



45

case petitioner never submitted for
arbitration any grievance concerning the
effect of the decree on its contractual
rights, and the deadline for filing such a

23
grievance expired years ago.

The circumstances of this case make 
evident the wisdom of the decision in W.R. 
Grace that such matters of interpretation 
should be resolved between the parties to 
an agreement under the procedures estab­
lished by the agreement itself. It is far 
from clear that the disputed consent 
decree in any way violates the Memorandum 
of Understanding. Article VI of the 
Memorandum, which deals with promotions, 
sets no standards at all for selecting

decree, or where the decree, incorporated 
by reference a statute or constitutional 
provision.
The union was obligated to file that 
grievance within 7 days of the disputed 
action, here, presumably, the signing or 
approval of the decree. Article XI, step 
1 .



46

those to be promoted, but merely provides
that promotions are to be made under civil

24
service procedures. Since the city Civil 
Service Commission is a party to this 
litigation and has agreed to make promo-
tions according to the terms of the
consent decree, a literal reading of
Article VI would appear to require, not
forbid, obedience to the decree. In
addition, Article XXIV states that it is
the intent of the signatories that the 
entire Memorandum comply "with applicable 
legal statutes", a provision which appears 
to incorporate by reference the require­
ments of Title VII. If the Memorandum 
does indeed incorporate the substantive 
provisions of Title VII, then the Memo­
randum itself may obligate the city to 
take the actions specified by the decree. 
Nether the city nor the union has chosen

Article VI is set out in full in Appendix
C.

24



47

to invoke the grievance procedures 
established by the Memorandum to provide a 
definitive interpretation of Articles VI 
and XXIV.

Even if an authoritative interpre­
tation of the decree existed and mandated 
some particular promotion standard or 
procedure, that would not preclude a court 
from approving the consent decree in this 
case. In W.R. Grace there was just such 
an interpretation, an arbitrator having 
held that a preexisting labor contract 
conflicted with a compliance agreement 
that the employer had entered into with 
the EEOC. This Court nonetheless made 
clear that the employer was obligated to 
obey both the compliance agreement and an 
injunction enforcing that agreement; the 
Court noted that the lower courts could if 
necessary use their contempt powers to
secure such obedience. 461 U.S. at 769.



48

The reasons for that aspect of w.R. 
Grace are clear. A labor agreement which 
forbade an employer from ever settling any 
Title VII claim, and thus required the 
employer to litigate to the end practices 
which it knew were illegal, would certain­
ly violate the "important public policy" 
of voluntary compliance with Title VII. 

461 U . S . at 7 70-71 . Equally contrary to 
public policy would be a labor agreement 
forbidding an employer from ever settling 
certain types of Title VII claims or from 
ever agreeing to particular types of 
relief for admitted Title VII violations. 
Where an employer believes its obligations 
under Title VII may conflict with its 
labor agreements, the employer must 
conform its practices to the requirements 
of federal law.

The priority accorded to applicable 
federal law, and to the Title VII policy 
in favor of voluntary compliance, do not



49

necessarily leave without redress a union 
whose collective bargaining agreement may 
be violated as a result of such voluntary 
compliance. W.R. Grace strikes the 
balance between possibly conflicting Title 
VII and collective bargaining obligations 
by directing that an employer conform its 
practices to what it reasonably believes 
to be the requirements of Title VII, while 
recognizing that the union may be entitled 
to seek monetary relief as a result. 461 
U.S. at 766-7723. Thus a union may be 
entitled to win back pay for members 
adversely affected by contract violations 
that were occasioned by compliance with a 
valid conciliation agreement or consent 
decree. "Compensatory damages may be 
available to a plaintiff injured by a 
breach of a [collective bargaining

fagreement] even when specific performance 
of the [agreement] would violate public 
policy". 461 U.S. at 769 n.13. Under



-  50

W.R. Grace the mere existence of a 
conciliation agreement or consent decree 
does not by itself "nullify [a] collective 
bargaining agreement"; where such a labor 
agreement is violated, the union may seek 
to enforce its contractual rights in any 
way that would not obstruct or deter 
compliance with the conciliation agreement 
or consent decree. This formula leaves an 
employer free to promptly abandon and 
redress perceived violations of Title VII, 
while permitting a union to litigate the 
question of who should ultimately bear the 
burden of any compliance action which 
violated the contractual rights of its 
members.

In W.R. Grace this Court recognized 
that the employer was obligated to obey a 
conciliation agreement that violated a 
labor contract, while sustaining a back 
pay award for the resulting contractual 
violation. The Court's opinion noted that



51

under some circumstances public policy 
might be violated by such a back pay 
award, but found no such public policy 
problems under the particular circum­
stances of that specific case. In the 
instant case, the union has never alleged, 
or sought to litigate through arbitration, 
any claimed violation of its Memorandum of 
Understanding. A district judge, in 
approving a consent decree might also 
decide in under appropriate circumstances 
whether public policy would preclude back 
pay claims under the collective bargaining 
agreement, but the district judge in the 
instant case did not purport to do so. 
This appeal, accordingly, simply presents 
no issue regarding whether, under W. R. 
Grace, the Firefighters Union might be 
entitled to seek monetary relief for its
white members.



52

B. The Basis of the Disputed 
Decree

An assessment of the reasonableness
of a proposed settlement turns, in part,
on the nature of the underlying claims

25
which that settlement resolved. The 
complaint in this action, in addition to a 
general allegation of intentional racial 
discrimination in promotions, alleged that 
Cleveland had engaged in three specific 
discriminatory practices: utilizing a
discriminatory non-job related promotion 
examination; manipulating retirement dates 
to prevent promotion of minorities who 
passed that test; and refusing to give any 
promotion examination between 1975 and 
1981, thus precluding promotions for 
minorities who were hired after 1973 and 
thus ineligible to take the 1975 test.

25 In considering a proposed settlement a 
court should also look to the types of 
claims that may have emerged since the 
filing of the complaint.



53

{Complaint, 1| 15) Plaintiffs also alleged 
that Cleveland had engaged in racial dis­
crimination in hiring firefighters for 
entry level positions. {_Ic3. , U1f 12-13). 
Plaintiffs asserted as well that the 
virtually all-white supervisors had 
discriminated in a variety of ways against 
minority firefighters.

Had plaintiffs established these 
claims at trial, minority victims of 
these practices would have been entitled 
to make whole relief, which would have 
included appointment to the positions they 
would have held but for that discrimina- 
tion. Franks v. Bowman Transportation Co., 
424 U.S. 747 (1976). Ordinarily such 
identified victims are entitled to be 
restored to their rightful places before 
any other promotions are made. Proven 
victims could thus have won an absolute 
preference for all future vacancies until 
the pool of victims was exhausted.



54

Were a court to award such make whole 
relief in a case such as this, there would 
be a number of distinct groups of arguable 
victims: (1) minority firefighters who 
failed the 1975 disputed examination; (2) 
blacks who passed the 1975 examination but 
were precluded from promotions by retire­
ment date manipulation; (3) minority 
firefighters who were hired between 1973 
and 1 978 and were barred from promotion 
because the city refused to give a new 
promotion examination; and (4) minority 
firefighters who had earlier been unlaw­
fully denied employment, and whose eligi­
bility to promote had thus been delayed 
because of discrimination, in addition, 
promotion discrimination in 1975 could 
affect the promotions of individuals in 
later years, by altering the composition



55

of the firefighters with whom, for
example, a 1980 hire would have to compete

26
for a promotion vacancy.

In addition, a prevailing plaintiff 
might have been entitled to a test 
neutralization order, forbidding Cleveland 
from relying on a non-job related test 
unless that test were utilized in a manner 
that eliminated its unlawful discrimina­
tory impact. As a practical matter such 
orders require that employers using a 
non-job related test must hire or promote 
the same proportion of women or minorities 
that took the unlawful examination. The 
individuals who benefit from such decrees 
are the individuals who would have been

If in 1975 the defendant promoted a white 
with a rating of 80 over a black with a 
rating of 90, a black 1980 hire with a 
rating of 85 would be an indirect but very 
real victim of that discrimination, since 
the 1980 hire would be denied a promotion 
in 1985 if competing with the more senior 
blacks, rather than with the lower scoring 
white.



56

the victims of the unlawful examination 
had the results of that examination been 
utilized in an unadjusted and thus illegal 
manner. Such test neutralization orders 
are the only means to prevent new viola­
tions of Title VI1, and injuries to new 
victims, where an employer needs to make 
additional hiring or promotion decisions 
before it has been able to develop a 
job-related test.

Compared to the types of decrees that 
might have been obtained had this case 
gone to trial, the consent decree at issue 
in this appeal is decidedly more flexible 
and the proportion of promotions affected 
is substantially smaller. The decree 
limits blacks who can benefit from its 
affirmative provisions to individuals



57

hired before December, 1982, a month prior
to the entry of the decree. Under the
portion of the decree which remains in 

28
effect, the designated individuals are not 
guaranteed any particular number or 
proportion of future vacancies. Rather, 
paragraph 13 of the decree requires that 
promotions be made in such a way as to 
"maintain" certain proportions among 
supervisory officers. Supervisory
vacancies only arise when an existing 
supervisor retires or otherwise vacates a 
position. Where the retiring official is

27

Paragraph 11 provides that the last 
examination affected by the decree will be 
that given on December 15, 1985. Fire­
fighters are only eligible for promotion 
after three years of service.

28 The portions of the decree governing 
promotions in 1983-85 are no longer in 
effect. Since petitioners seek only to 
prevent future promotion decisions from 
being governed by the terms of the decree, 
we limit our comments to the provisions of 
the decree that will affect promotions 
between the present date and December, 
1987, when the numerical aspects of the 
decree will expire.



58

white the consent decree is simply 
inapplicable, since the proportion of 
minorities in that job will not be reduced 
regardless of the race of the individual 
promoted to replace a white. The vast 
majority of retirees are in fact white, 
since there were virtually no blacks on 
the force until 15 years ago. Even if a 
black supervisor does leave his or her 
position prior to December, 1987, when the 
disputed provisions will expire, the 
decree will not apply unless his or her 
departure has brought the level of 
minority supervisors below the specified 
floor.

The decree has thus had only a 
limited impact; since March 1983 mi­
norities have received only 7% of the 
promotions in the fire department, even 
though they constitute 14% of the city 
firefighters. Although the city did not 
reach the goals set for 1983-85, that did



59

not constitute a violation of the decree.
It is quite unlikely that a substantial 
portion of the vacancies to be filled in 
the next two years will be governed by the 
decree; indeed, whether any of those 
vacancies will be so affected is a matter 
of speculation.

Petitioner and the United States 
assert that "many" of the beneficiaries of 
the still operational portions of the 
decree could not have been victims of past 
discrimination. (U.S. Amicus Br., p. 3 n. 
2). Were the sole justification advanced 
for the decree a desire to provide relief 
for victims of past discrimination, this 
objection, if substantiated, would raise 
significant questions about the reason­
ableness of the decree. But over the 
course of the protracted trial court 
proceedings in this case, petitioner never

29

29 Brief for Respondent Cleveland Vanguards, 
statement of the case.



60

raised or sought to prove any such claim. 
On the contrary, the provisions of the 
decree designating which minority indivi­
duals would be beneficiaries were nego­
tiated and agreed to by the petitioner 
union itself. When the union ultimately 
objected to the proposed decree, it 
objected solely to the fact that the 
decree involved what the union branded a 
"quota", and expressed no objection 
whatever to the identities of the particu­
lar minorities who would benefit from the

30
disputed provisions. In view of the 
variety of ways in which the alleged 
discriminatory practices might have 
injured minority employees, the designa­
tion of individuals to benefit from the 
decree is certainly not unreasonable.

30 Objections to Consent Decree, p. 3



61

The decree in this case also operated 
in several ways likely to prevent future 
discrimination. The district judge
concluded that integration of the vir­
tually all-white supervisory positions 
would have a salutary influence on the 
entire department, and would encourage 
blacks and Hispanics to join an agency 
whose past discriminatory practices had 
deterred minority applications.

Lets get these people promoted. And 
then we then plug in a substantial 
number of black leadership that can 
start having some influence in the 
operation of this fire department, 
and the other minorities that haven't 
sought these jobs before, and they 
are not going to see a significant 
number of minority officers and they 
are going to be attracted to some on 
the force. ... [I]f all of you do
that this thing will naturally work 
itself rather than our having to 
constantly force it and plug it.

(J.A., p. 68). The city Director of
Public Safety testified that an integrated
supervisory force would result in better
and fairer management of the agency, and



62

increase his ability to assure "quality 
... service'8 for all the citizens of 
Cleveland. (J.A. 50-51). Because the 
goal for each position approximated the 
proportion of minorities to be made, the 
decree operated as well to neutralize, at 
least in part, any adverse effect of 
promotion examinations. An increase in 
the number of minority supervisors was 
also likely to reduce discrimination by 
supervisors against minority fireighters.

The particular form of the instant 
decree may, of course, differ from the 
precise type of affirmative relief that a 
court might have awarded had the case gone 
to trial. But the parties to a negotiated 
settlement are not limited to trying to 
predict the specific formula that a court 
would have utilized, but should be free to 
develop other devices to balance the 
competing interests of all affected 
employees. As a practical matter, white



63

or male workers are understandably far 
more concerned with the number of vacan­
cies affected by a decree than with the 
identities of the particular minorities or 
women who will benefit from that decree. 
Title VII litigants should remain free to 
negotiate settlements the varying details 
and precision of which reflect that 
priority.



64

CONCLUSION

For the above reasons the judgment of 

the court of appeals should be affirmed.

Respectfully submitted;

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
CLYDE E. MURPHY 
PENDA D. HAIR 
ERIC SCHNAPPER *

NAACP Legal Defense and 
Educational Fund, Inc. 
16th Floor 
99 Hudson Street 
New York? New York 10013 
(212) 219-1900

Counsel for Amici 
* Counsel of Record

(A complete list of 
Counsel is set out on p. ii)



A P P E N D I X



APPENDIX A
Justice Department Consent Decrees

The amicus brief of the United States 
in Firefighters v. Cleveland Vanguards 
refers to 33 consent decrees entered into 
by the United States. A list of those 
decrees, furnished to amici by the 
Department of Justice, is set out below. 
Although there are four Georgia consent 
decrees, the Department counted them as 
two decrees because the decrees were 
approved on the same date.

United States v. Anne Arundel County, 
No. R-85-4366, D. Md. (October 
23, 1985)

United States v. City of Avondale, D. 
No. CIV.-84-2412 PHX EHC, D. 
Ariz. (December 27, 1984)

United States v. Buffalo Board of 
Education, No. CIV-83-366-C,
W.D. N.Y. (September 17, 1984)



2a

United States v. Burlington County- 
College, CIV. No. 82-3255 
(H.A.A.), D.N.J. {January 24,
1983)

United States v. Board of Education 
of the City of Chicago, Civil 
Action No. 83 C 8988, N.D. 111. 
(February 22, 1985)

United States v. Board of Education 
of Community High School 
District 218, Civil Action No.
84 C 7238, N.D. 111. (August 24,
1984)

United States v. Duquesne Light Co., 
Civil Action Nos. 75-1110 and 
76-1620, W.D. Pa. (April 16, 
1983)

United States v. County of Fairfax, 
Virginia, Civil Action No. 
78-862-A, E.D. Va. (April 29, 
1982)

United States v. City of Farmington, 
Civil Action NO. 80-037-C, D.N. 
Mex. (October 2, 1981)

United States v. State of Georgia 
and Georgia Department of 
Transportation, Civil Action No. 
C84-1574A, N.D. Ga. (June 28,
1985)

United States v. State of Georgia and 
Georgia Department of Public 
Safety, Civil Action No.
C84-1575A, N.D. Ga. (May 30, 
1985)



3a

United States v. State of Georgia and 
Georgia Department of Natural 
Resources, Civil Action No. 
C84-1576A, N.D. Ga. (May 30, 
1985)

United States v. State of Georgia and 
Forrestry Commission, Civil 
Action No. C84-1577A, N.D. Ga. 
(May 30, 1985)

United States v. City of Hazelwood, 
Civil Action No. 83-2289-C(3), 
E.D. Mo. (June 6, 1984)

United States v. State of Indiana, 
Civil Action No. IP 80-1272-C, 
S.D. ind. (May 17, 1983)

United States v. Jefferson County, 
Civil Action No. 75-P-0666-S, 
N.D. Ala. (December 3, 1982) 
(cited as "Jefferson County 
Cities")

United States v. Jefferson County, 
Civil Action Nos. 75-P-0666-S 
and 74-P-0017-S N.D. Ala. 
(December 29, 1982) (cited as 
"Jefferson County")

United States v. Board of Education 
of City of Kingsport, No. 
CIV-2-83-316, E.D. Tenn. 
(September 27, 1983)

United States v. County of Lancaster, 
Nebraska, Civil Action No. 
84-L-058, D. Neb. (January 8, 
1985)



4a  —

United States v . Sheriff of Lancaster 
County, Civil Action No.
83-0136R, E.D. Va. (May 6,
1983)

United States v. City of Little Rock, 
Civil Action No. LR-C-83-490, 
E.D. Ark. (June 17, 1983)

United States v. Maricopa County,
CIV. No. 85-921 PHX WEC, D.
Ariz. (September 11, 1985)

United States v . City of Marietta, 
Georgia, Civil Action No. 
C83-1875A, N.D. Ga. (September 
15, 1983)

United States v. Maryland Department 
of Transportation, Civil Action 
No. 383-3889, D. Md. (November 
10, 1983)

United States v . Nassau County,
Civil Action No. 77-C-1881 GCP, 
E.D.N.Y. (April 21, 1982)

United States v . Nassau County,
Civil Action No. CV-80-1054 
(JBW), E.D.N.Y. (May 18,
1982)(cited as "Nassau County 
Sheriff")

United States v . City of Newport
Beach, Civil Action No. 83-7585,
C.D. Cal. (January 5, 1984)

United States v . State of North 
Carolina, Civil Action No.
83-1774-CIV(5) E.D.N.C.
(December 22, 1983)



5a

United States v. City of North
Little Rock, Civil Action No. 
LR-C-82-300, E.D. Ark. (April 
21, 1983)

United States v. City of Orange,
Civil Action No. 84-12-44, C,D. 
Cal. (March 7, 1984)

United States v. City of Philadelphia, 
Civil Action No. 85-4485, E.D.
Pa. (August 13, 1985)

United States v. City of Santa 
Barbara, Civil Action No. 
84-0925-PAR, C.D. Cal. (February 
23, 1984)

United States v. Commonwealth of 
Virginia, Department of 
Highways, Civil Action 
82-0933-R, E.D. Va. (March 1,
1 983)

United States v. City of Wadsworth, 
Ohio, Civil Action No.
C-83-5160A, N.D. Ohio (March 16, 
1984)

United States v. City of Willard,
Civil Action No. C83-1156, N.D. 
Ohio (May 24, 1984)



6a

APPENDIX B
Justice Department Consent Decree 

Expected Hiring Rates
(*Different rates for different positions)
Decree Types of Rate Rate
Duquesne 1 

Light, ff?
Black Laborers 
Black Engineers 
Women Laborers 
Women Engineers

15%
3 .5% 
12% 
10%

Farmington, 
1 1

Indian
Hispanic
Women

35%
1 2 %
35%

Ga.-Dept.of 
Trans. 
App. B J

Blacks 5%, 10% ,
20%,25%*

Women 5%,10%,15%,19%,25%*
Ga.-Forrestry 

Comm' n . K 8 * 2 3 4
Blacks
Women

4%,20%,25%* 
15%

Ga. Dept, of Blacks 20%,24%*
Natural Reg Women 15% , 18% , 20%*
sources,If 8 s
Parties "anticipate" hiring level. f17.

2 " Interim hiring goal" . 1(7.
3 "Objective" to "achieve" certain hiring 

levels. f7.
4 "Objective" to "achieve" certain hiring 

levels. 1(7.
5 "Objective" to "achieve" certain hiring 

levels. 1(7.



7a

Ga.-Dept. of Blacks 25%
Pub.Safety Women 15%

7Indiana, 11 5 Women 25%
Little Rock, Blacks 25%
158 Women 1 6 %

Nassau Cty. 
111115,24’

Blacks and Hispanics 20%
Women 25%

N.Little Blacks 20%,25%,30%*
Rock, 116, 
App. B

Women 8%,10%,16%,25%*

Virginia,1f71 1 Blacks 2%,3%,4%,6%,7% 
8%,10%,12%,15% 
18%,20%,25%,30% 

30%,40%,45%,50%*
Women 3%,4%,5%,6%,7%

8%,9%,10%,15%,16%
20%,25%30%,33%,35%*

6 "Objective" "to "achieve" certain hiring
levels. 1|7.

7 "Expectat ion" as to hiring level. 117.
8 "Expectat ion" as to hiring level. 117.
9 "Expectat ion" as to hiring levels. 1116 ;

county "shall fill" vacancies with number
"which approximate" portion of qualified 
minority applicants. 1! 25.

1 0 "Expectation" as to hiring levels. 1| 8. 1 * * *
1 1 "Expectation" as to hiring levels. 1| 8.

The percentages under this statewide
decree vary both by job and by city.



8a

APPENDIX C

Memorandum of understanding 
between

City of Cleveland and Local #S3, 
International Association of Firefighters

ARTICLE VI

VACANCIES - PROMOTIONS

All promotions shall be made 
outlined in the Civil Service Commission 

as mandated by the Civil Service rules and 

nothing herein shall be deemed to be 
repugnant to the Civil Service rules. 

However, it is the intent of the parties 

to this Memorandum of understanding that 

where alternatives or discretion exist on 
the part of the appointing authority, that 

such discretion, choice, or selection 

shall be governed by objective standards 

and rules of reason. Disqualification on 

any promotion may constitute a grievance 
and shall be processed in accordance with 
the Grievance Procedure.

as



9a

ARTICLE XI 
GRIEVANCE PROCEDURE

It is mutally understood that the 
prompt presentation, adjustment and/or 
answering of grievances is desirable in 
the interest of sound relations between 
the employees and the City. The prompt 
and fair disposition of grievances 
involves important and equal obligations 
and responsibilities, both joint and 
independent, on the part of representa­
tives of each party to protect and 
preserve the Grievance Procedure as an 
orderly means of resolving grievances. 
Actions by the City or the Union which 
tend to impair or weaken the Grievance 
Procedure are improper.

A grievance is a dispute or dif­
ference between the City and the Union, or 
between the City and the employee concern­
ing the interpretation and/or application



10a

of and/or compliance with any provision of 

this Memorandum of Understanding, includ­

ing any and all disciplinary actions, and 

when any such grievance arises, the 

following procedure shall be observed.

STEP 1.
Except as specified in Step 1-A 

below, all grievances must be initiated in 

writing withn seven (7) calendar days 

after the event giving rise to such 

grievance.
* * *

STEP 2.
If the grievance is not satisfactor­

ily settled at STEP 1 , the Union may 

within five (5) calendar days after 
receipt of STEP 1 answer, appeal in 

writing to the Chief. The Chief shall 
review the grievance, STEP 1 answer and 
appeal, and give written response to the 
appeal to the union President within five 

(5) calendar days.



1 la

STEP 3.
If the grievance is not satisfactor­

ily settled at STEP 2 the Union may, 
within five (5) calendar days after 
receipt of the STEP 2 answer, appeal in 
writing to the Safety Director. The 
Safety Director or his designee, which may 
include representatives of the Department 
of Personnel, shall meet with the Local 
Union Present, or designee, and Secretary 
or designee (and steward if necessary) 
within five (5) calendar days after the 
grievance is submitted to the Director, 
and a written answer shall be given to the 
Local Union President (personally or by 
mail) within five (5) calendar days after 
the STEP 3 meeting.
STEP 4 .

If the grievance is not satisfactor­
ily settled at STEP 3, the Union may 
within ten (10) calendar days after 
receipt of the STEP 3 answer, refer the



12a

dispute to the Joint Appeal and Review 

Board. The representatives from the Onion 

and not more than two (2) representatives 

from the City, and the Board shall meet at 

least once a month at a time mutally 

agreeable in order to (a) review and 
attempt to settle unresolved grievances, 

if any, and (b ) discuss matters of mutual 
interest relating to the employees covered 

by this Memorandum. A written answer to 

each grievance shall be given to the union 

President (personally or by mail) within 

ten (10) calendar days after the STEP 4 

meeting.

STEP 5.
If the grievance is not satisfactor­

ily settled, at STEP 4, the Union may, 

within thirty (30) calendar days after 
receipt of the STEP 4 answer, submit the 

matter to arbitration. The Union shall 

notify the American Arbitration Associa­

tion and the City at the same time of its



13a

intent to appeal the grievance. The 
arbitrators shall be chosen in accordance 
with the rules of the American Arbitration 
Association. The fees and expenses of the 
Arbitrator shall be borne equally by the 
City and the Union. Furthermore, the 
aggrieved employee, his steward, and any 
necessary witnesses shall not lose any 
regular straight time pay for time off the 
job while attending an arbitration 
proceeding.

In the event a grievance goes to 
arbitration, the arbitrator shall have 
jurisdiction only over disputes arising 
out of grievances as to the interpretation 
and/or application and/or compliance with 
the provisions of this Memorandum, 
including all disciplinary actions and in 
reaching his decision, the arbitrator 
shall have no authority (1) to add to or 
subtract from or modify in any way any of 
the provisions of this Memorandum; (2) to



14a

intent to appeal the grievance. The 

arbitrators shall be chosen in accordance 

with the rules of the American Arbitration 

Association. The fees and expenses of the 

Arbitrator shall be borne equally by the 

City and the Union. Furthermore, the 
aggrieved employee, his steward, and any 

necessary witnesses shall not lose any 

regular straight time pay for time off the 

job while attending an arbitration 

proceeding.

In the event a grievance goes to 
arbitration, the arbitrator shall have 

jurisdiction only over disputes arising 

out of grievances as to the interpretation 

and/or application and/or compliance with 
the provisions of this Memorandum, 

including all disciplinary actions and in 

reaching his decision, the arbitrator 
shall have no authority (1) to add to or 
subtract from or modify in any way any of 

the provisions of this Memorandum; (2) to



15a

pass upon issues governed by law; or (3) 
to make an award in conflict with law. 
The Arbitrator shall issue a decision 
within thirty (30) days after submission 
of the case to him.

The Grievance Procedure set forth in 
this Memorandum shall be the exclusive 
method of reviewing and settling disputes
between the City and the Union and/or
between the City and an employee (or
employees) , exclusive of the election set
forth in STEP 1-A, and all decisions of
arbitrators shall be final, conclusive and 
binding on the City, the Union, and the 
employees. A grievance may be withdrawn 
by the Union at anytime and the withdrawal 
of such grievance shall not be prejudicial 
to the filing of future grievance, even if 
on the same subject matter.



16a

A policy grievance which affects a 

substantial number of employees may 

initially be presented by the Onion at 

STEP 3 of the Grievance Procedure,
The time limits set forth in the 

Grievance Procedure shall; unless extended 
by mutual written agreement of the City 

and the Union, be binding, and any 

grievance not timely presented, or timely 

processed thereafter, shall not be 

considered a grievance under this Memoran­

dum and shall not be considered a grie­
vance under this Memorandum and shall not 

be arbitrable. Any grievance not timely

processed by the City at any of the

proced ing steps may be immediately

referred by the Union to STEP 4 for

disposition.
Calendar days as provided within the 

Grievance Procedure shall nto include 

Saturdays, Sundays or holidays.



17a

ARTICLE XXIV
LEGALITY AND SEPARABILITY

It is the intent of the City and the 
Union that this Memorandum comply, in 
every respect, with applicable legal 
statutes, charter requirements, governmen­
tal regulations which have the effect of 
law and judicial opinions and if it is 
determined by proper authority that any 
provision of this Memorandum is in 
conflict with law, that provision shall be
null and void.



H a m i l t o n  G r a p h i c s ,  I n c . — 2 0 0  H u d s o n  S t r e e t ,  N e w  Y o r k ,  N . Y . — ( 2 1 2 )  9 6 6 - 4 1 7 7