Barry v. United States Motion for Leave to File a Brief and Brief of Amici Curiae The Lawyer's Committee for Civil Rights Under Law and the NAACP Legal Defense and Educational Fund in Support of the Petitioners

    No. 87-1150

I n  T h e

(Hmtrt of %  Inttrii § ta ta
October T e r m , 1987

Marion  S. Barry , J r ., et al.,
Petitioners,

U n it ed  States of A m erica , et al.,
_______  Respondents.

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

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE A BRIEF AND 
BRIEF OF AMICI CURIAE  THE LAWYERS’ 

COMMITTEE FOR CIVIL RIGHTS UNDER LAW 
AND THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. IN SUPPORT

OF THE PETITIONERS

Barry L. Goldstein 
NAACP Legal Defense &

William L. Robinson * 
Richard T. Seymour 
J udith A. Winston 
Lawyers’ Committee for

E ducational F und 
806 Fifteenth St., N.W. 
Suite 940
Washington, D.C. 20005 
(202) 638-3278

Civil Rights Under Law 
1400 ‘Eye’ Street, N.W. 
Suite 400
Washington. D.C. 20005 
(202) 371-1212J ulius LeVonne Chambers 

NAACP Legal Defense &
Educational F und Martin D. Schneiderman 

Samuel T. Perkins 
Karen E. Rochlin 
Steptoe & J ohnson 
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 429-3000

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Dated: May 6,1988 * Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . ,  In c . -  7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



I n  T h e

i&tpran? (Emtrt at %  luitrft
October Th rm , 1987

No. 87-1150

M arion  S. Barry , J r ., et al.,
Petitioners,

U n ited  States o f  A m erica , et al.,
Respondents.

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

for the District of Columbia Circuit

MOTION OF AMICI CURIAE THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW 

AND THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. FOR LEAVE TO 

FILE A BRIEF IN SUPPORT OF PETITIONERS

The Lawyers’ Committee for Civil Rights Under Law 
and the NAACP Legal Defense and Educational Fund, 
Inc. (Amici) respectfully move for leave to file the at­
tached Brief as Amici Curiae. This motion is being filed 
under Rule 36.1.1 Petitioners and Respondent The United 
States of America have consented to the filing of this 
brief and their letters of consent have been filed with the 
Clerk of the Court. Respondents Marvin K. Hammon, 
et al., have not consented.

1 The brief is timely filed under Rule 36.1 since it has been 
submitted within the time allowed for filing the brief in opposition 
to the Petition for Writ of Certiorari.



Amici are civil rights organizations representing mem­
bers of a variety of disadvantaged groups to secure their 
civil and constitutional rights. Many of the employment 
discrimination problems which amici have attempted to 
resolve could have been cured without jurdicial inter­
vention if the employers involved had implemented rea­
sonable affirmative action plans, such as the plan at issue 
in this matter. Amici and their clients have a direct in­
terest in securing a rule of law encouraging employers 
throughout the nation to resolve their own problems 
through voluntary remedies so that resort to litigation 
will be unnecessary.

This case involves a question which continues to trouble 
lower federal courts and employers nationwide, namely, 
what circumstances will support an employer’s voluntary 
efforts to remedy discrimination. The decision by the 
court of appeals, which prevents the Petitioners from 
correcting the present discriminatory impact of an in­
valid test, conflicts with instructions from this Court de­
signed to encourage voluntary remedies for discrimina­
tion while protecting employers from otherwise inevit­
able litigation, either from minorities or from non­
minorities alleging reverse discrimination. The results of 
the decsion below conflict with those of other federal 
courts, while threatening to increase the need for court- 
ordered remedies for discrimination. The resolution of 
this case will significantly affect the employment prac­
tices of public and private employers nationwide, and 
not just those of the parties to the litigation below.

Amici have represented a large number of discrimina­
tion plaintiffs in the District of Columbia and nation­
wide, and are thus able to present factual information 
and legal analysis that will demonstrate the larger im­
portance and far-reaching consequences of the decision 
issued in this case. Amici were granted leave to appear 
as amid below, and at the invitation of the district court



participated in the briefing and argument of many of 
the key issues below.

For these reasons, leave to file the attached amici 
curiae brief should be granted.

Respectfully submitted,

Barry L. Goldstein 
NAACP Legal Defense & 

E ducational Fund 
806 Fifteenth St., N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278
J ulius LeYonne Chambers 
NAACP Legal Defense & 

Educational F und 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Dated: May 6,1988

William L. Robinson * 
Richard T. Seymour 
J udith A. Winston 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 ‘Eye’ Street, N.W. 
Suite 400
Washington, D.C. 20005 
(202) 371-1212
Martin D. Schneiderman 
Samuel T. Perkins 
Karen E. Rochlin 
Steptoe & J ohnson 
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 429-3000
* Counsel of Record



QUESTION PRESENTED
Whether an employer may voluntarily follow a tem­
porary affirmative action plan in order to avoid illegal 
discrimination caused by a non-job-related selection sys­
tem which disproportionately limits job opportunities for 
minorities.

(i)





TABLE OF CONTENTS
Page

QUESTION PRESENTED .............................................  i

TABLE OF AUTHORITIES ...........................................  iv

INTEREST OF AMICI ........ ...... .... ........................ .....  1

SUMMARY OF ARGUMENT ............................   2

ARGUMENT
I. THIS CASE PRESENTS QUESTIONS AND

CONFLICTS WHICH ARE OF NATIONAL 
IMPORTANCE .......       3
A. The Dilemma Which the DCFD Sought to

Resolve Through Its AAP Continues to Per­
plex Lower Federal Courts and Employers 
Nationwide....... ........        3

B. By Adopting Inapplicable Standards and Re­
quiring a Factual Predicate Unrelated to the 
Invalid Hiring Test, the Court of Appeals 
Has Departed from Other Federal Authori­
ties and Has Exacerbated a Dilemma Which 
Merits Review By This Court ........................ 6

C. Because the DCFD’s Plan Meets Even the
Most Demanding Factual Predicate for Vol­
untary Affirmative Action, Additional Re­
view is Necessary ___ _____ ____________  12

II. THE DECISION BELOW, LIMITING THE
AVAILABILITY OF VOLUNTARY AFFIRM­
ATIVE ACTION AND CONFLICTING WITH 
OTHER FEDERAL AUTHORITIES, WILL 
HAVE RAMIFICATIONS EXTENDING BE­
YOND THE DISTRICT OF COLUMBIA .........  16

CONCLUSION ____________ _____ ___ _________ _ 19

APPENDIX................................................. ....... ....... . la

(iii)



IV

TABLE OF AUTHORITIES
CASES Page

Berkman v. City of New York, 580 F. Supp. 226 
(E.D.N.Y. 1983), aff’d without op., 755 F.2d
913 (2d Cir. 1985) ....... ...................... ..................  17

Berkman v. City of New York, 705 F.2d 584 (2d
Cir. 1983) .................   11

Berkman v. City of New York, 536 F. Supp. 177 
(E.D.N.Y. 1982), aff’d, 705 F.2d 584 (2d Cir.
1983) ...........        17,18

Bushey v. New York State Civil Serv. Comm’n, 733 
F.2d 220 (2d Cir. 1984), cert, denied, 469 U.S.
1117 (1985).................................... ......... .............  11

Firefighters Institute v. City of St. Louis, 588 F.2d 
235 (8th Cir. 1978), cert, denied, 443 U.S. 904
(1979) .......       11

Firefighters Local Union No. 1 7 8 v. Stotts, 467
U.S. 561 (1984) .............      9

Fullilove v. Klutznick, 448 U.S. 448 (1980) ........... 8
Griggs v. Duke Power Co., 401 U.S. 424 (1971)—. 13
Guardians Ass’n of the N.Y. Police Dep’t v. Civil 

Serv. Comm’n, 630 F.2d 79 (2d Cir. 1980), cert.
denied, 452 U.S. 940 (1981) ____________ _ 17

Hazelwood School District v. United States, 433
U.S. 299 (1977) ______ ________ _______ ____  7-8

Janowiak v. Corporate City of South Bend, 836
F.2d 1034 (7th Cir. 1984) _______ _____ _____ 14

Johnson v. Transportation Agency, Santa Clara
County, Cal., 107 S. Ct. 1442 (1987).......8, 11, 12,13, 15

Kirkland v. New York State Dep’t of Correctional 
Services, 628 F.2d 796 (2d Cir. 1980), cert, de­
nied, 450 U.S. 980 (1981) ............ ........ .......... .....  16

Local No. 93, Int’l Assoc, of Firefighters v. City of
Cleveland, 106 S.Ct. 3063 (1986) ................. .....  8,10

Local 28 of the Sheet Metal Workers Int’l Assoc, v.
EEOC, 106 S. Ct. 3019 (1986)............ .............. 8, 13,14

Marks v. United States, 430 U.S. 188 (1977) ____  14
NAACP v. Seibels, 14 Fair Empl. Prac. Cas.

(BNA) 670 (N.D. Ala. 1977), aff’d in part, rev’d 
in part, 616 F.2d 812 (5th Cir.), cert, denied, 449 
U.S. 1061 (1980) ........... ....... ............... ..... .........  11,18



V

TABLE OF AUTHORITIES—Continued
Page

Oburn v. Shapp, 393 F. Supp. 561 (E.D. Pa.), aff’d,
521 F.2d 142 (3d Cir. 1975).............................. .. 11, 17

Payne v. Travenol Laboratories, Inc., 673 F.2d 798
(5th Cir.), cert, denied, 459 U.S. 1038 (1982)..... 8

Pennsylvania v. O’Neill, 348 F. Supp. 1084 (E.D.
Pa. 1972), aff’d in part, vacated in part, 473 F.2d
1029 (3d Cir. 1973) (enbane) (per curiam)....... 17-18

Pennsylvania v. Rizzo, 13 Fair Empl. Prac. Cas.
(BNA) 1475 (E.D. Pa. 1975), aff’d in part, ap­
peal dismissed in part, 530 F.2d 501 (3d Cir.),
cert, denied, 426 U.S. 921 (1976) ........ ............ 11, 16,18

Reed v. Lucas, 11 Fair Empl. Prac. Cas. (BNA)
153 (E.D. Mich. 1975) _____ ______ ______ _ 18

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1 (1971) ................... ................... ................  8

United States v. City of Buffalo, 609 F. Supp. 1252 
(W.D.N.Y.), aff’d sub nom. United States v. 
NAACP, 779 F.2d 881 (2d Cir. 1985), cert, de­
nied, 106 S. Ct. 3333 (1986) ........................ ........ 16

United States v. City of Chicago, 663 F.2d 1354
(7th Cir. 1981) (en banc) ................ ...... ...........  11

United States v. County of Fairfax, 629 F.2d 932 
(4th Cir. 1980), cert, denied, 449 U.S. 1078
(1981) ................. - ..................................................  8

United States v. Paradise, 107 S. Ct. 1053 (1987) ..8, 9,10 
United Steelworkers v. Weber, 443 U.S. 193

(1979) ____ _______ _________ _____ -............... 8,9,15
University of Cal. Regents v. Bakke, 438 U.S. 265

(1978) .................. ..................................................  8
Vulcan Soc’y v. City of New York, 96 F.R.D. 626

(S.D.N.Y. 1983) ............. ........... ..... ............ .... . 18
Vulcan Soc’y v. Fire Dep’t of White Plains, 505

F. Supp. 955 (S.D.N.Y. 1981)_______________  6
Wygant v. Jackson Bd. of Educ., 476 U.S. 267

(1986) ................................... ................... ..8, 9,14, 15, 16



VI

TABLE OF AUTHORITIES—Continued

STATUTES AND REGULATIONS Page
42 U.S.C. § 2000e-16 (1982) .................................  18
Pub. L. No. 97-91, 95 Stat. 1182 (Dec. 4,1981) ___  5
Pub. L. No. 98-473, 98 Stat. 1937 (Oct. 12, 1984).. 5
28 C.F.R. § 50.14 (1987) ..........................................3,11,17
29 C.F.R. § 1608 (1987) ............. .............................  10,17

MISCELLANEOUS
44 Fed. Reg. 4,422 (1979) ................. ...................... . 10
Rutherglen & Ortiz, Affirmative Action Under the 

Constitution and Title VII: From Confusion to 
Convergence, 35 U.C.L.A. L. Rev. 467 (1988).— 9

Schnapper, The Varieties of Numerical Remedies,
39 Stan. L. Rev. 851 (1987)....... ......... ...............  6

United States Dep’t  of Commerce, Bureau of The 
Census, Statistical Abstract of the United States
1987 .........................................................................  19

United States Office of Personnel Management, 
Federal Civilian Workforce Statistics, Biennial 
Report of Employment by Georgraphic Area
(Dec. 31, 1986).......................................................  19

Washington Post, Feb. 26, 1988, C l ......................  5



In  T he

Ihtfjratt? (Emrrt of tip luttPii States
October Term , 1987

No. 87-1150

Marion S. Barry, J r., et al. ,

Petitioners, v. ’
United States of America, et al. ,

Respondents.

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

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW AND 
THE NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. IN SUPPORT OF THE PETITIONERS

INTEREST OF AMICI

The Lawyers’ Committee for Civil Rights Under Law 
is a nationwide civil rights organization with local offices 
in Washington, Philadelphia, Boston, Chicago, Jackson, 
Denver, Los Angeles, and San Francisco. It was formed 
by leaders of the American Bar in 1963, at the request 
of President Kennedy, to provide legal representation to 
blacks who were being deprived of their civil rights. Over 
the years, the national office of the Lawyers’ Committee 
and its local offices have represented the interests of 
blacks, Hispanics, and women in many hundreds of class 
actions in the fields of employment discrimination, voting 
rights, equalization of municipal services, and school de-



2

segregation. Well over a thousand members of the private 
bar, including former Attorneys General, former presi­
dents of the American Bar Association, and other leading 
lawyers, have assisted in these efforts.

The NAACP Legal Defense and Educational Fund, 
Inc. is a nonprofit corporation whose principal purpose is 
to secure the civil and constitutional rights of minorities 
through litigation and education. For more than forty 
years, its attorneys have represented plaintiffs in thou­
sands of civil rights cases, including many significant 
cases before this Court.

Many of the employment discrimination cases brought 
by amici are against employers who could have cured 
their problems without judicial intervention if they had 
developed and implemented reasonable affirmative action 
plans such as the plan at issue in the case at bar. Amici 
and their clients have a direct interest in securing a 
rule of law encouraging employers to address and resolve 
their own problems, so that the filing of enforcement law­
suits will be unnecessary.

Amici were granted leave to appear as amid below, 
and at the invitation of the district court participated in 
the briefing and argument on many of the key issues 
below.

SUMMARY OF ARGUMENT

The decisions below have failed to recognize that the 
affirmative action plan (AAP) of the District of Colum­
bia Fire Department (DCFD), far from being an ab­
stract quota program developed in a vacuum, is a meas­
ured and reasonable response to avoid immediate liability 
arising from an invalid test with an unlawful discrimina­
tory impact on blacks which would otherwise occur. The 
examination’s disparate impact and lack of validity are a 
matter of record and have been stipulated to by the par­
ties to the litigation. By overlooking this critical feature 
of the DCFD Plan, the court of appeals has not only mis-



3

applied the rulings of this Court, but would force the 
DCFD to choose between liability to minorities for dis­
crimination or not hiring firefighters until a valid selec­
tion procedure can be developed. Adjusting for the ad­
mitted disparate impact of the DCFD’s hiring test was 
entirely overlooked as the basis for justifying the DCFD’s 
Plan.

The court of appeals so focused on its assessment of 
past discrimination that it overlooked the AAP’s critical 
function of avoiding present discrimination. In so doing, 
the court of appeals created a situation in which other 
employers are prevented from taking appropriate steps 
to prevent present liability. This result contradicts the 
directions of the Justice Department’s own Uniform 
Guidelines On Employee Selection Procedures, see 28 
CFR § 50.14 (1987), and results reached by other fed­
eral courts. Because of the importance of this issue, the 
devastating effect the court of appeals’ decision will have 
on voluntary remedies to avoid discrimination, and the 
conflict with the results of other federal court decisions 
and federal guidelines, the Petition for Certiorari should 
be granted.

ARGUMENT
I. THIS CASE PRESENTS QUESTIONS AND CON­

FLICT'S WHICH ARE OF NATIONAL IMPOR­
TANCE

A. The Dilemma Which the DCFD Sought to Resolve 
Through Its AAP Continues to Perplex Lower 
Federal Courts and Employers Nationwide

To appreciate the difficulty that the decisions below 
pose for other employers faced with similar problems of 
validation, this Court need consider only a few critical 
facts. As a matter of record, it is undisputed that the 
DCFD’s hiring examination (the Firefighters Selection 
Test or FST) has an adverse discriminatory impact on 
blacks. The parties to this litigation have stipulated to



4

this disparate impact.1 Even before initiation of this 
litigation, a hearing examiner for the District of Colum­
bia’s Office of Human Rights (OHR) found that the 1980 
version of the FST and the virtually identical 1984 ver­
sion both had severe adverse impacts on blacks without 
being job-related. Petition at 6, n.3. These findings, 
made after fifty days of trial, were affirmed on admini­
strative appeal. All of the parties to the present litiga­
tion, including the Justice Department, stipulated to these 
findings.2 The trial court below once again found that 
selecting job applicants in order of their ranked FST 
scores resulted in an adverse racial impact. Hammon v. 
Barry, 606 F. Supp1. 1082, 1088 (D.D.C. 1985) ; Peti­
tioner’s Appendix (P. App.) at 134-35a. What this 
means is that rank-ordered hiring causes black appli­
cants to wait far longer than whites before they receive 
offers, even though the rank-ordering system is not a 
valid predictor of job performance. As explained by 
amici during oral argument before the trial court, 
twenty-nine percent of the DCFD’s white hires were em­
ployed within a year of the 1980 test. Within that same 
period, only one percent of the black hires were em­
ployed. Of those applicants forced to wait two or three 
years before employment, only twenty-five percent were 
white while forty-eight percent, nearly twice the percen­
tage, were black.®

To correct the FST’s ongoing adverse impact, the 
DC-FD made a reasonable attempt to eliminate this dis­
crimination, and consequent exposure to liability under 
Title VII, through its AAP. Indeed, all of the parties,

1 Statement of Stipulated Material Facts, Hammon v. Barry, 
Nos. 84-0903, 85-0782, 85-0797 (D.D.C.) at (ft 17, 20, and 22. The 
pertinent pages of this Statement are included in the Appendix to 
this Brief (App.) at la-4a.

2 Id. at H 18, App. at 2a.
8 March 23, 1985 Hearing Transcript at 103-106. Pertinent pages 

from this Transcript have been appended to this Brief. App 
at 5a-8a.



5
including Respondent The United States of America, 
stipulated that the portions of the AAP directed towards 
hiring were “designed solely to eliminate the racial and 
sexual disparity which would exist if the examination 
results were used in rank order.” 4 At issue here is the 
intractable dilemma which the DCFD now faces without 
this plan. The FST remains the DCFD’s only currently 
available hiring examination, and the District of Colum­
bia needs additional firefighters now.® See Petition at 
19-21 (emphasizing the current lack of any alternatives 
to the FST). Since the District has not been able to hire 
firefighters through random selection,'6 it has employed 
them according to their rank order based on FST scores. 
Yet rank-ordered selection is the primary cause of the 
F'ST’s severely adverse racial impact. Since blacks re­
ceive generally lower FST scores than whites, black ap­
plicants have been precluded from employment entirely 
or have faced years of delay before the DCFD could hire 
them, even though the FST itself has no demonstrated 
relevance for job performance.

The AAP was adopted to adjust for and eliminate pre­
cisely these harsh discriminatory consequences from se­
lecting applicants by rank order from the FST. Without 
the AAP, the DCFD confronts an unenviable choice. It 
may address the urgent need for additional firefighters 
on the basis of rank-ordered selection and confront lia­
bility to minority applicants, or it may adopt the equally 
unsatisfactory alternative of not hiring at all, regardless 
of safety or other concerns, until a valid alternative to 
the FST can be developed. For all of those affected by

4 Statement of Stipulated Material Facts, f[ 30, App. at 3a 
(emphasis added).

5 For an account of the increasingly urgent need for hiring more 
firefighters, and the costs of not being able to do so, see Washington 
Post, Feb. 26, 1988, at Cl.

6 See, e.g., Pub. L. No, 97-91, 95 Stat. 1182 (Dec. 4, 1981); 
Pub. L. No. 98-473, 98 Stat. 1837 (Oct. 12, 1984) (enacting H.R. 
5899) ; Petition at 20, 20 n.9.



6

this dilemma, including minority as well as nonminority 
applicants and the DCFD itself, the most reasonable solu­
tion continues to be use of the AAP, which directs that 
new classes of firefighters contain the same percentage of 
minorities as the approximate percentage of minorities 
who pass the FST.

Once they acknowledge or become liable for the adverse 
impact of a hiring procedure, employers like the DCFD 
have frequently urged federal courts to create or approve 
temporary affirmative action measures until alternative 
procedures can be developed.7 Indeed, in at least one in­
stance, an employer and a predominately white union 
preferred to neutralize the adverse impact of a test and 
retain it permanently.8 Because courts and employers 
continue to be vexed by the need to respond effectively 
to hiring procedures that have an adverse impact on 
disadvantaged groups, the present case warrants review 
by this Court.

B. By Adopting Inapplicable Standards and Requiring 
a Factual Predicate Unrelated to the Invalid Hir­
ing Test, the Court of Appeals Has Departed from 
Other Federal Authorities and Has Exacerbated a 
Dilemma Which Merits Review By This Court

Despite the DCFD’s need to remedy the adverse effects 
of the FST or face continued charges of discrimination, 
the court below struck down the AAP. By so doing, on 
the grounds that the DCFD lacked the appropriate fac­
tual predicate for affirmative action,® the court below has 
undermined the ability of public or private employers to 
voluntarily avoid imminent racial discrimination.

7 See generally Schnapper, The Varieties of Numerical Remedies, 
39 Stan. L. Rev. 851, 889 (1987); infra cases cited at 11, note 24.

8 Vulcan Soc’y v. Fire Dep’t of White Plains, 505 F. Supp. 955, 
960-61 (S.D.N.Y. 1981).

® Hammon v. Barry, 826 F.2d 73, 78-81 (D.C. Cir. 1987) ; P. 
App. at 90a-92a; 813 F.2d at 426, P. App. at 31a.



7

Over dissent, the majority below first ruled that to 
comply with the requirements of Title VII, the AAP must 
respond to a “manifest racial imbalance” in the DCFD’s 
workforce, despite the record and the trial court’s find­
ings that the FST had a disparate impact. The court 
below then managed to find that such an imbalance did 
not exist. Amici concur with Petitioners that such a 
“finding” by the court of appeals is riddled with errors 
of law for the reasons the Petitioners have addressed, 
including improper statistical comparisons, confusion of 
the standards required by Title VII and the Constitu­
tion, reversal of the appropriate burdens of proof, and 
most disturbing of all, the appellate court’s unwarranted 
assumption of the trial court’s role as finder of fact, re­
sulting in conclusions unsupported by any record evi­
dence.10

Yet the heart of the error below, and the source of 
this case’s fundamental importance, is that any analysis 
for “manifest imbalance” within the DCFD’s workforce 
was unnecessary.11 Indeed, the facts of this case support­
ing the AAP are far more compelling than a “manifest 
imbalance” test. The AAP was needed not just to adjust 
for an imbalance, but to avoid imminent discrimination.

110 For example, the majority below regarded observations that 
the AAP adopted quotas merely to refleet the racial composition 
of applicants passing the test as “drawn out of the ether.” 826 
F.2d at 79 n .ll, P. App. a t 93a. Had the majority considered 
stipulations to this effect made by all of the parties before the trial 
court, however, the source and binding effect for these observations 
would have been clear. See Statement of Stipulated Material Facts, 
HIT 24, 30, 32; App. at 3a-4a.

1:1 Even if such analysis were necessary, the proper statistical 
comparison would reveal a manifest imbalance. The proper com­
parison is not that adopted by the court below, comparing the 
DCFD’s workforce with the labor force of the entire Washington 
Metropolitan area, see 826 F.2d at 77, P. App. at 88a. Instead, the 
proper comparison is between the DCFD’s work force and its appli­
cant pool. See Hazelwood School District v. United States, 433



8

If evidence of present discrimination will not create a 
factual predicate supporting affirmative action, then the 
decisions of this Court permitting race-conscious reme­
dial measures are without meaning.12 Nothing in any 
of the rulings of this Court requires an employer, public 
or private, to convict itself of liability under Title VII or 
the Constitution before undertaking affirmative action. 
The anomaly of requiring employers to remedy discrimi­
nation while denying them a reasonable means to avoid 
it in the first place is absurd. In fact, this Court has 
never accepted that an employer must choose between 
liability to nonminorities if it fails to prove its own dis­
crimination, or liability to minorities after such discrim­
ination has been proven. See Johnson, 107 S. Ct. at 1451, 
n.8; Wygant, 476 U.S. at 290-91 (O’Connor, J., concur­
ring) ; Weber, 443 U.S. at 210-11 (Blackmun, J., con-

U.S. 299, 508 n.13 (1977) ; Payne v. Travenol Laboratories Inc., 
673 F.2d 798, 823-24 (5th Cir.), cert, denied, 459 U.S. 1038 (1982) ; 
United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir. 
1980), cert, denied, 449 U.S. 1078 (1981). The court of appeals 
further muddied its statistical comparison by focusing only on new 
hires employed after 1981; however, for the years 1983 and 1984 
of this comparison, the DCFD was hiring in compliance with rec­
ommendations of the OHR which were meant to correct an im­
balance in the DCFD’s workforce. Finally, the court of appeals 
ignored the readily manifest, imbalance of white applicants hired 
shortly after passing the test and black applicants facing years of 
delay before hire. When proper comparisons are made which do not 
dilute the percentage of blacks in the appropriate labor market or 
applicant group, a manifest imbalance is apparent.

12 Cf. Johnson v. Transportation Agency, Santa Clara County, 
Cal., 107 S. Ct. 1442 (1987) ; United States v. Paradise, 107 S. Ct. 
1053, 1064 (1987) ; Local No. 93, In t’l Assoc, of Firefighters v. 
City of Cleveland, 106 S. Ct. 3063 (1986); Local 28 of the Sheet 
Metals Workers’ Int’l Assoc, v. EEOC, 106 S. Ct. 3019, 3049, 3052 
(1986) ; Wygant v. Jackson Board of Educ,, 476 U.S. 267 (1986) ; 
Fullilove v. Klutznick, 448 U.S. 448 (1980) ; United Steelworkers 
v. Weber, 443 U.S. 193 (1979) ; University of Cal. Regents v. 
Bakke, 438 U.S. 265 (1978) ; Swann v. Charlotte-Mecklenburg Bd. 
of Educ., 402 U.S. 1 (1971).



9

curring). The Court has also recognized that employers 
adopt voluntary remedial measures to avoid claims for 
backpay or reduce claims of disparate impact. See Fire­
fighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 
589 (1984) (O’Connor, J., concurring) ; Weber, 443 U.S. 
193, 211 (Blackmun, J., concurring).

Development of a valid alternative to the FST will be 
costly and may take years. This Court, and Respondents 
themselves, have recognized that validation of hiring pro­
cedures is both expensive and time-consuming. See, e.g., 
Paradise, 107 S. Ct. at 1068 n.21 (noting “how difficult 
it is to develop and implement selection procedures that 
satisfy the rigorous standards of the ‘Uniform Guide­
lines’ because The validation of selection procedures is 
an expensive and time-consuming process usually extend­
ing over several years’ ” ) (quoting The Brief for the 
United States, 24-25, n.13).13 As noted above, unless and 
until a valid test is developed, the DCFD may avoid lia­
bility under Title VII through the use of an AAP or by 
not hiring at all. The court of appeals, however, has 
eliminated the first option for the DCFD. Indeed, no 
employer will be able to meet the requirements of the 
decision below for voluntary affirmative action if the 
virtual certainty of discrimination claims is not by itself 
sufficient to warrant remedial measures. To insist upon 
such requirements places voluntary compliance with Title 
VII in jeopardy. Weber, 443 U.S. at 210 (Blackmun, J., 
concurring); Wygant, 476 U.S. at 290-91 (O’Connor, J., 
concurring).

Moreover, abundant legal authority already exists 
which instructs employers to do exactly what the DCFD

13 See also Uniform Guidelines on Employee Selection Procedures, 
28 C.F.R. § 50.14 (1985) ; Rutherglen & Ortiz, Affirmative Action 
Under the Constitution and Title VII: From Confusion to Con­
vergence, 35 U.C.L.A. L. Rev. 467 at 508 (1988) (suggesting that 
the expense of validation makes affirmative action the only viable 
option employers have for avoiding liability for claims of disparate 
impact).



10

has attempted. E.g., Paradise, 107 S. Ct. 1053, 1059, 
(quoting NAACP v. Allen, 493 F.2d 614, 618 (5th Cir. 
1974)) (“The . . . use of unvalidated selection procedures 
that disproportionately excluded blacks precluded any 
argument that ‘quota hiring produces unconstitutional 
“reverse” discrimination, or a lowering of employment 
standards, or the appointment of less or unqualified per­
sons.’ ” ). Also in the more restricted context of court- 
ordered affirmative action, the Supreme Court has held 
that interim hiring or promotional goals may be neces­
sary:

pending the development of nondiscriminatory hiring 
or promotion procedures. In these cases, the use of 
numerical goals provides a compromise between two 
unacceptable alternatives : an outright ban on hiring 
and promotions, or continued use of a discriminatory 
selection procedure.

Sheet Metal Workers, 106 S. Ct. at 3037.
Such authority is nothing new. The EEOC Guidelines 

on “Affirmative Action Appropriate Under Title VII of 
the Civil Rights Act of 1964, As Amended,” 29 CFR 
§ 1608 (1987),14 direct employers to engage in a “self 
analysis” to determine, inter alia, if there is a “reason­
able basis” for concluding that employment practices 
“ [h]ave or tend to have an adverse effect on employment 
opportunities of . . . groups whose employment . . . oppor­
tunities have been artificially limited.” Id. § 1608.4(b). 
If so, as is the case with the DCFD, the employer may 
take reasonable action “includ[iing] goals and timetables 
. . . [and] the adoption of practices which will eliminate 
the actual or potential adverse impact . . . .” 15

14 These guidelines were first issued in 44 Fed. Reg. 4,422 (1979).

15 29 CFR § 1608.4(c) (1987). These guidelines “constitute a 
body of experience and informed judgment to which courts and 
litigants may properly resort for guidance.” Local Number 93,



11

Similarly, numerous court decisions have held that af­
firmative action is appropriate to remedy the adverse im­
pact of an invalid hiring procedure. See, e.g., Bushey v. 
New York State Civil Serv. Comrn’n, 733 F.2d 220, 226- 
27 (2d Cir. 1984), cert, denied, 469 U.S. 1117 (1985); 
Berkman v. City of New York, 705 F.2d 584, 595-98 (2d 
Cir. 1983), affirming 536 F. Supp. 177, 216-18 (E.D.N.Y. 
1982); United States v. City of Chicago, 663 F.2d 1354, 
1361-62 (7th Oir. 1981) (en banc); Firefighters Insti­
tute v. City of St. Louis, 588 F.2d 235, 242 (8th Cir. 
1978) (“We, therefore, direct the District Court, on re­
mand, to enter an injunctive decree which requires that 
assignments to acting fire captain positions reflect a fifty 
percent black ratio as far as is practicable, pending the 
development of a valid examination.” ), cert, denied, 443 
U.S. 904 (1979); Pennsylvania v. Rizzo, 13 Fair Empl. 
Prac. Cas. (BNA) 1475, 1481 (E.D. Pa. 1975), aff’d in 
part, appeal dismissed in part, 530 F.2d 501 (3d Cir.), 
cert, denied, 426 U.S. 921 (1976); Obum v. Shapp, 393 
F. Supp. 561, 574-75 (E.D. Pa.), aff’d, 521 F.2d 142 
(3d Cir. 1975), NAACP v. Seibels, 14 Fair Empl. Prac. 
Cas. (BNA) 670, 686-87 (N.D. Ala. 1977), aff’d in 
part, rev’d in part, 616 F.2d 812 (5th Cir.), cert, denied, 
494 U.S. 1061 (1980); see also Uniform Guidelines on 
Employee Selection Procedures, 28 CFR § 50.14. It is 
difficult to imagine how the DCFD could not justify its 
AAP in view of the various authorities instructing it 
to correct the adverse impact of its test, including the 
Uniform Guidelines adopted by the Justice Department 
itself. Indeed, the result of the decision below would ap­
pear to be in direct conflict with the results of the 
authorities just cited, further warranting review by this 
Court.

In t’l Assoc, of Firefighters v. City of Cleveland, 106 S. Ct. 3063, 
3073 (1986) (quoting General Electric v. Gilbert, 429 U.S. 125, 
142 (1976)). See also 28 CFR § 50.14(6) (1987) (use of alternate 
selection procedures to eliminate adverse impact).



12

C. Because the DCFD’s Plan Meets Even the Most 
Demanding Factual Predicate for Voluntary Affirm­
ative Action, Additional Review is Necessary

In Johnson v. Transportation Agency, Santa Clara 
County, California, 107 S. Ct. 1442 (1987), this Court 
addressed the minimum requirements under Title VII for 
a factual predicate supporting a public employer’s vol­
untary affirmative action plan. Johnson concerned ap­
plication of a county transportation agency’s affirmative 
action plan which addressed the complete absence of fe­
male employees in 238 skilled craft worker positions. Id. 
at 1446. Unlike the DCFD, the agency had not been con­
fronted with charges of discrimination prior to adoption 
of its plan, nor had the agency stipulated that it had used 
invalid selection procedures with a discriminatory ad­
verse impact. The agency had not been charged with 
discrimination, and the record in Johnson did not contain 
prior findings of any type of discrimination, including 
findings of adverse impact. The facts in Johnson which 
supported affirmative action were thus less compelling 
than those at issue in the present case, which involves 
imminent discrimination with resumption of rank- 
ordered hiring under the FST. See id. at 1451-52, 1452- 
53 n.10.

The requirement of a “manifest imbalance” is closer to 
the minimum which a public employer need show for its 
affirmative action plan to meet the factual predicate re­
quired by Title VII.16 As the Court reasoned in Johnson, 
citing its earlier decision in Weber, “an employer seeking 
to justify the adoption of a plan need not point to its own 
prior discriminatory practices, nor even to evidence of 
an ‘arguable violation’ on its part.” Id. at 1451. A case 
like the present one exceeds the requirements of Johnson,

18 Moreover, as the strength of other evidence indicating dis­
crimination increases, an employer need not rely as heavily, if at 
all, on statistical evidence in order to voluntarily adopt affirmative 
action. See Johnson, 107 S. Ct. at 1453 n .ll.



13

since use of the invalid FST w-ith the resulting disparate 
racial impact amounts to an actual violation of Title 
VII. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 
(1971). For a court to engage in statistical comparisons 
concerning proof of a manifest imbalance when an on­
going disparate impact has already been established is 
at best an academic exercise, and at worst a w'aste of 
time for the court and the parties before it.17

Even under the arguably more stringent18 factual 
predicate required by the Constitution, the AAP with­
stands scrutiny.19 While this Court has not yet fully de-

17 Similarly, the focus on the DCFD’s prior discrimination in the 
decision below was unnecessary. While Johnson associated the re­
quirement of manifest imbalance with its appearance in a “tradi­
tionally segregated job category,” it did so only so that “sex or 
race will be taken into account in a manner consistent with Title 
A ll’s purpose of eliminating the effects of employment discrimina­
tion.” Id. at 1452. While much has been made below of the sig­
nificance of the DCFD’s historical discrimination, such historical 
analysis should be unnecessary in a case like the present one involv­
ing the current adverse impact of an invalid test. This current 
adverse impact demonstrates that the AAP was consistent with 
Title VII’s purpose of eliminating discrimination. See Sheet Metal 
Workers, 106 S. Ct. at 3049 (“The purpose of affirmative action 
is . . .  to prevent discrimination in the future.”).

118 See Johnson, 107 S. Ct. 1442 at 1450 n.6 (“The fact that a 
public employer must also satisfy the Constitution does not negate 
the fact that the statutory prohibition with which the employer 
must contend was not intended to extend as far as that of the 
Constitution.”) .

19 Petitioners maintain that this case rests entirely on Title VII. 
Petition for Writ of Certiorari at 12, n.6. While this matter is 
open to dispute, compare Hammon v. Barry, 826 F.2d 73, 76 
(D.C. Cir. 1987), P. App. at 80a; with 826 F.2d at 81-82, P. App. 
at 98a, 826 F.2d at 88, P. App. at 113a, and 813 F.2d at 420, P. 
App. at 17a, Petitioners and Amici both appear to agree that the 
opinions below have confused constitutional requirements with those 
of Title VII. The importance of these issues, the need for clarity 
between the two standards, and the impact this matter will have on



14

fined these requirements,20 one method of meeting the 
constitutional predicate is with “convincing” or “suf­
ficient” evidence of prior discrimination. Wygant v. Jack- 
son Bd. of Educ., 476 U.S. at 277-78 (Powell, J., writ­
ing for the plurality) at 286 (O’Connor, J., concurring). 
In Wygant, this Court reviewed a challenge to terms in a 
public school district’s collective bargaining agreement 
governing layoffs. The plurality struck down this plan in 
part because it was burdensome and not narrowly tail­
ored; however, five Justices agreed that the school dis­
trict had offered no evidence of prior discrimination.

Justice O’Connor’s concurring opinion articulated what 
factual predicate established the constitutionally required 
compelling interest in race-conscious remedial action.21 
She wrote:

The Court is in agreement that, whatever the formu­
lation employed, remedying past or present racial 
discrimination by a state actor is a sufficiently 
weighty state interest to warrant the remedial use of 
a carefully constructed affirmative action program. 
This remedial purpose need not be accompanied by 
contemporaneous findings of actual discrimination 
to be accepted as legitimate as long as the public 
actor has a firm basis for believing that remedial 
action is required.

interpreting- constitutional requirements for affirmative action, 
highlight the importance of this matter and further warrant grant­
ing Petitioners’ application for review.

2'° See, e.g., Sheet Metal Workers, 106 S. Ct. at 3052.

21 Her concurrence has been described as “critical” to an under­
standing of these requirements. Janowiak v. Corporate City of 
South Bend, 836 F.2d 1034, 1041 (7th Cir. 1984) ; see also Marks 
v. United States, 430 U.S. 188, 193 (1977) (when no single rationale 
explaining the result enjoys the assent of five Justices, the holding 
of the Court may be viewed as the position taken by those who 
concurred on the narrowest grounds).



15
Id. at 286 (emphasis added). Ultimately, she wrote, non­
minority challengers to an affirmative action plan bear 
the burden “of persuading the Court that the [public 
employer’s] evidence did not support an inference of prior 
discrimination, and thus a remedial purpose.” Id. at 293 
(emphasis added). In other words, under the Constitu­
tion an affirmative action plan will be sustained and its 
factual predicate will be established where the public 
employer provides evidence of its reasonable belief that 
remedial action was needed.

These requirements could not apply more easily to the 
present case. The OHR had recommended that the DCFD 
adopt an affirmative action plan, which it did under a 
consent order. The discriminatory impact resulting from 
use of the FST, as noted above, had been established 
through adjudicative findings and stipulations. Federal 
regulations adopted by the Justice Department and the 
Equal Employment Opportunity Commission, as well as 
guidelines from federal court decisions in other juris­
dictions, directed that prior to test validation, temporary 
affirmative action to correct precisely this kind of ad­
verse impact was appropriate and even necessary. The 
DCFD had ample reaon to believe in its need to remedy 
discriminatory use of the FST. As a matter of simple 
logic, if the DCFD’s voluntary plan was based on a fac­
tual predicate meeting constitutional requirements, it 
must have met the requirements of Title VII.02

2:2 In evaluating the factual predicate for affirmative action, this 
Court has also emphasized that preferential remedies for discrim­
ination must not unduly trammel the interests of nonminorities. 
See, e.g., Johnson, 107 S. Ct. at 1451; Wygant, 476 U.S. at 282-84; 
Weber, 443 U.S. at 208. In the present case, this requirement could 
not be more fully met, since the DCFD’s Plan does not impose any 
burden on nonminorities. The AAP merely re-orders selection to 
eliminate the disparate impact of rank-oredered selection from the 
FST. Since the FST is an invalid predictor of job performance, 
nonminorities cannot say that they have been deprived of anything 
simply because they are hired out of rank order. See Kirkland v. 
New York State Dep’t of Correctional Services, 628 F.2d 796, 798



16
While claiming to strike the DCFD’s Plan under anal­

ysis based solely on Title VII, the court of appeals ap­
plied a standard equal if not greater in strength to that 
required by the Constitution. Yet not all employers, in­
cluding those in the private sector, are governed by con­
stitutional standards. Accordingly, one additional con­
sequence of the decision below is to effectively provide 
reverse discrimination plaintiffs with a previously un­
available and unintended cause of action. Review by this 
Court is therefore necessary not only to prevent confu­
sion of the standards imposed by this Court and other 
authorities, but to restore the balance under Title VII of 
rights and remedies for minorities and nonminorities 
alike.

II. THE DECISION BELOW, LIMITING THE AVAIL­
ABILITY OF VOLUNTARY AFFIRMATIVE AC­
TION AND CONFLICTING WITH OTHER FED­
ERAL AUTHORITIES, WILL HAVE RAMIFICA­
TIONS EXTENDING BEYOND THE DISTRICT OF 
COLUMBIA

“The question presented in this case is too important 
to leave in its present unsatisfactory state in this circuit

(2d Cir. 1980) (adding points to minority scores on invalid test 
with adverse impact “does not bump white candidates because of 
their race but rather reranks their [estimated] predicted perform­
ance”), cert, denied, 450 U.S. 980 (1981) ; United States v. City of 
Buffalo, 609 F. Supp. 1252, 1254 (W.D.N.Y.) (“Since selection pro­
cedures used by the City have not yet been shown to be accurate 
predictors of job performance, it is, at this juncture, somewhat 
presumptuous to say that an injustice is done every time a candi­
date is selected out of rank order.”), ajf’d sub nom. United States 
v. NAACP, 779 F.2d 881 (2d Cir. 1985), cert, denied, 106 S. Ct. 
3333 (1986); Rizzo, 13, Fair Empl. Prac. Cas. (BNA) at 1481 
(“if a person appears in a certain position on an eligibility list 
prepared in violation of the law, his lawful position must give way 
to the lawful requirement to avoid discriminatory promotions”). 
Perhaps most significantly, the DCFD’s Plan did not address the 
context of layoffs, where legitimate expectations of employment 
have developed, but instead addressed new hires, who would not have 
such expectations. This distinction can be critical to evaluating the



17
or elsewhere.” S3 So wrote five dissenting judges below, 
protesting the reversal of the appellate court, by a bare 
majority, of its decision to hear this case en banc. This 
reversal, however, issued with virtually no explanation, 
does not alter the exceptional importance of this case. 
As a result of the decisions below, government employers 
may no longer remedy the adverse impact of an invalid 
hiring examination. Such a result defies the rulings of 
this Court while placing government employers in an 
untenable position, forcing them to choose between lia­
bility to minorities for discrimination or liability to non- 
minorities for reverse discrimination. Indeed, in view of 
the efforts by the court of appeals to limit its ruling to 
Title VII, this same unaccpetable dilemma will apply 
equally to private employers as well.

Moreover, the majority below has created an addi­
tional dilemma for employers attempting to follow con­
tradictory federal authorities. The federal government 
itself has instructed employers to adopt goals and time­
tables to remedy employment practices with an adverse 
impact on disadvantaged groups. 29 CFR § 1608.4(b) 
(1987). Through the Uniform Guidelines, even the Jus­
tice Department had adopted such directions. 28 CFR 
§ 50.14 (1987). Numerous federal courts, including 
courts of appeals, have accepted the use of affirmative 
action to remedy the discriminatory impact of invalid 
tests.®4 In contrast, the Court of Appeals for the District

burden of affirmative action on nonminorities. See Wygant, 476 
U.S. at 282.

23 Supplemental Brief in Support of Petition for Certiorari, 
Appendix at 3a.

124 See Berkman v. City of New York, 580 F. Supp. 226 (E.D.N.Y. 
1983), aff’d without op., 755 F.2d 913 (2d Cir. 1985) ; Guardians 
Ass’n of the N.Y. Police Dep’t v. Civil Serv. Comm’n, 630 F.2d 79, 
108-09 (2d Cir. 1980), cert, denied, 452 U.S. 940 (1981) ; Berkman 
v. City of New York, 536 F. Supp. 177, 216 (E.D.N.Y. 1982), aff’d, 
705 F.2d 584 (2d Cir. 1983) ; Oburn v. Shapp, 393 F. Supp. 561,' 
574 (E.D. Pa.), aff d, 521 F.2d 142 (3d Cir. 1975); Pennsylvania 
v. O’Neill, 348 F. Supp. 1084, 1103-04 (E.D. Pa. 1972), aff’d in



18

of Columbia Circuit now stands alone in its failure to rec­
ognize the need to correct imminent discrimination from 
use of a test with a discriminatory impact through the 
use of a temporary affirmative action plan.

Employers hiring nationwide will be especially bur­
dened by such conflicting messages. For example, Title 
VII now applies with equal force to federal employers®5 
As federal employers in the District of Columbia attempt 
to develop policies in compliance with the paradoxical 
mandates of the decisions below, it stands to reason that 
such policies may take effect throughout the country in 
regional offices of federal agencies.06 Without the inter­

part, vacated in part, 473 F.2d 1029 (3d Cir. 1973) (en banc) 
(per curiam) (proportional hiring provision affirmed by equally 
divided court) ; Vulcan Soc’y v. City of New York, 96 F.R.D. 626, 
628-29 (S.D.N.Y. 1983) ; Reed v. Lucas, 11 Fair Empl. Prac. Cas. 
(BNA) 153, 155-56 (E.D. Mich. 1975) ; NAACP v. Seibels, 14 
Fair Empl. Prac. Cas (BNA) 670, 686-87 (N.D. Ala. 1977), aff’d 
in part, rev’d in part, 616 F.2d 812 (5th Cir.), cert, denied, 449 
U.S. 1061 (1980) ; Pennsylvania v. Rizzo, 13 Fair Empl. Prac. Cas. 
(BNA) 1475, 1481 (E.D. Pa. 1974), aff’d in part, appeal dismissed 
in part, 530 F.2d 501 (3d Cir.), cert, denied, 426 U.S. 921 (1976). 
For public agencies such as police or fire departments, the ability 
to hire is often vital to public safety, and courts have recognized 
this concern, which is of no less importance in the present case, 
in upholding affirmative action plans. See Berkman v. City of New 
York, 536 F. Supp. 177, 216 (E.D.N.Y. 1982) (“to freeze all 
appointments [to the Fire Department] may present a hazardous 
situation to the citizens of the community”) (quoting Vulcan Soc’y 
v. Civil Serv. Comm’n, 360 F. Supp. 1265, 1278 (S.D.N.Y.)), aff’d 
in part, 490 F.2d 387 (2d Cir. 1973)), aff’d, 705 F.2d 584 (2d Cir. 
1983); Reed, 11 Fair Empl. Prac. Cas. (BNA) at 155 (“Any injunc­
tion which caused continuing vacancies in the . . . [Sheriff’s] De­
partment would jeopardize . . . efficient operation.”).

25 See 42 U.S.C. § 2000e-16 (1982).
26 While the District of Columbia is the center of the federal 

government, and the source of many agency-wide policies, the en­
tire Washington Metropolitan area contains only the second largest 
number of federal civilian employees. California ranks first as



19

vention of this Court, the conflicts described above will 
only grow more burdensome for federal or similarly sit­
uated private employers where other jurisdictions are 
more lenient in their requirements for affirmative action. 
Should other jurisdictions follow the court below, how­
ever, the ability for all employers to remedy discrimina­
tion will only suffer more consistent impairment.

CONCLUSION
For the reasons stated above, the Petition for Writ of 

Certiorari should be granted.

Respectfully submitted,

Barry L. Goldstein 
NAACP Legal Defense & 

E ducational F und 
806 Fifteenth St., N.W.
Suite 940
Washington, D.C. 20005 
(202) 638-3278
J ulius LeVonne Chambers 
NAACP Legal Defense & 

E ducational F und 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Dated: May 6,1988

William L. Robinson * 
Richard T. Seymour 
J udith A. Winston 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 ‘Eye’ Street, N.W. 
Suite 400
Washington, D.C. 20005 
(202) 371-1212
Martin D. Schneiderman 
Samuel T. Perkins 
Karen E. Rochlin 
Steptoe & J ohnson 
1330 Connecticut Ave., N.W. 
Washington, D.C. 20036 
(202) 429-3000
* Counsel of Record

the jurisdiction with the highest number of such employees. See 
United States Dep’t of Commerce, Bureau of the Census, Statistical 
Abstract of the United States 1987, at 310; United States Office of 
Personnel Management, Federal Civilian Workforce Statistics, 
Biennial Report of Employment by Geographic Area 4-5 (Dec 31 
1986). ‘ ’



APPEN DIX



la

APPENDIX

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-0903

Marvin K. Hammon, et al,
Plaintiffs,

v.

Marion S. Barry, J r., et al.,
Defendants.

Civil Action No. 85-0782

Kevin Michael Byrne, et al,
Plaintiffs,

v.

Theodore R. Coleman, et al,
Defendants.

Civil Action No. 85-0797

U nited States of America,
Plaintiff,

v.

The District of Columbia, et al,
Defendants.

STATEMENT OF STIPULATED MATERIAL FACTS 
* * * *



2a

16. Components of the 1984 test were substantially 
the same as the corresponding components of the 1980 
test; but one component, following oral directions, was 
revised and substantially modified.

17. Both the 1980 test and the 1984 test had an ad­
verse impact upon Black applicants as more fully de­
scribed below.

The 1980 Examination

18. After an evidentiary hearing, the Hearing Ex­
aminer found that the entry level examination admin­
istered on November 22, 1980 had an adverse impact 
upon Black applicants and was not a valid predictor of 
successful job performance as required by the Uniform 
Guidelines on Employee Selection Procedures.

19. There were 974 test takers, of whom 724 (74.35%) 
were Black and 207 (21.5%) were White. There were 
959 passers, of whom 713 (74.35%) were Black and 205 
(21.5%) were White.

20. The hearing examiner’s finding of adverse impact 
is based upon the rank order use of the examination, be­
cause such use resulted in a substantially different rate 
of selection of Black and White applicants.

21. The hearing examiner found that if selections 
were made in rank order the following would have re­
sulted :

for the first 100 names on the eligible list the selection 
rate for Blacks would be 3.6% and for Whites 34%;

for the first 200 names on the eligible list the selection 
rate for Blacks would be 11.2% and for Whites 54%;

for the first 300 names on the eligible list the selection 
rate for Blacks would be 20.8% and for Whites 69.4%.

22. The District of Columbia accepted these and other 
findings of the Hearing Examiner concerning adverse



3a

impact and job relatedness, and does not now contend 
that the written examination either had no adverse im­
pact or is valid and job related.

The 19 8U Examination
23. The 1984 firefighters examination was adminis­

tered in March, April and July 1984.
24. There were 1,626 test takers, of whom 1,050 

(64.6%) were Black, 492 (30.3%) were White and 84 
(5.1%) Hispanic and others; 1,384 persons passed the 
exam, of whom 830 (60%) were Black, 486 (35.1%) 
were White, 33 (2.4%) were Hispanic and 35 (2.5%) 
were others, 1287 (93%) were males and 96 (6.9%) 
were female.

#  -ifr *  *

29. The District of Columbia has agreed to validate 
the examination in accordance with the May 23, 1984 
consent decree in the Hammon case but, to date, has not 
done so. In particular, neither the District of Columbia 
nor any other party to these consolidated cases has de­
veloped validity evidence meeting the standards of the 
psychological profession showing that those who score 
higher on the test are more likely to perform better on 
the job than those who score lower.

Proposed Selection Procedures From the 1981* Eligibility 
List Using the District of Columbia Affirmative 

Action. Plan
30. The AAP requires the use of multiple certificates 

to select firefighters and is designed solely to eliminate 
the racial and sexual disparity which would exist if the 
examination results were used in rank order.

31. Under the Plan, the District of Columbia Office 
of Personnel is to generate 12 certificates, each consist­
ing of approximately 120 candidates, from separate lists 
of White males, White females, Black males, Black fe-



4a

males, Hispanic males, and other males based upon the 
candidate’s score on the written examination (plus vet­
eran’s preference points).

32. Each certificate, described in paragraph 31 above, 
is to have the following racial and sexual proportion of 
candidates: 60% Black, 2.4;% Hispanic, 35.1% White, 
2.6% other, 93% male, and 7% female.

* • * * * ■

DATED: March 14, 1985

/s /  Inez Smith Reid 
Inez Smith Reid 
Corporation Counsel, D.C. 
J ohn H. Suda, Principal 

Deputy Corporation Counsel, 
D.C.

Martin L. Grossman 
Deputy Corporation Counsel, 

D.C.
Sandra J efferson Grannum 
Assistant Corporation Counsel, 

D.C.
District Building, Room 316 
Washington, D.C. 20004 
(202) 727-6303 
Attorneys for Defendants 

Marion S. Barry, et al.
/ s /  Joan A. Burt 
J oan A. Burt
310 Oklahoma Avenue, N.E. 

Suite 4
Washington, D.C. 20002 
(202) 388-0549
Karl W. Carter, J r.
1850 K Street, N.W.

Suite 880
Washington, D.C. 20036 
(202) 331-2034 
Attorneys for

Marvin K. Hammon, et al., 
Plaintiffs in No. 84-0903

Respectfully submitted,

Wm . Bradford Reynolds 
Assistant Attorney General
/ s /  By: Richard S. Ugelow 
David L. Rose 
Richard S. Ugelow 
Attorneys
Department of Justice 
Civil Rights Division 
Washington, D.C. 20530 
(202) 633-3415 
Attorneys for United States 

of America, Plaintiff in 
No. 85-0797

/s /  George H. Cohen 
George H. Cohen 
Robert M. Weinberg 
J eremiah A. Collins 
Mady Gilson 
Bredhoff & Kaiser 
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 833-9340 
Attorneys for Kevin Michael 

Byrne, et al., Plaintiffs in 
No. 85-0782



5a

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-0903

Marvin K. Hammon, et al,
vs Plaintiffs,

The  District of Columbia, et al,
_______  Defendants.

Civil Action No. 85-0782

Kevin Michael Byrne, et al,
vs Plaintiffs,

Theodore R. Coleman, et al,
_______  Defendants.

Civil Action No. 85-0797

United States of America,
vg Plaintiff,

The  District of Columbia, et al,
_ _ _ _ _ _  Defendants.

Courtroom No. 11 
Washington, D.C.

Saturday, March 23, 1985

The above-entitled matter came on for hearing in open 
court on Cross-Motions for Summary Judgment before 
The Honorable CHARLES R. RICHEY, United States 
District Judge, commencing at 10:13 a.m.

*  *  *  *



6a

[103] Now, maybe they haven’t sufficiently thought 
through their approach, but there’s—I think there’s a 
serious Article III question, frankly, whether the Justice 
Department’s challenge on the hiring test can properly 
be before the Court, but I have to go through the process 
one at a time.

On the factual question, to set the predicate for this, 
the Department of Justice reply memorandum says at 
page 7, note 3, that there’s no need for concern over hir­
ing, because, since 1981, 66 percent of the hires have 
been black; since 1982, 73 percent of the hires have been 
black.

What they overlook is, first, that there was adverse 
impact on those who never got hired. Our figure there 
is 2.67 standard deviations away from what you would 
expect by chance, and I’ll supply those figures to the 
Court, also.

Second, they overlook the fact that the black candidates 
by and large had to wait years before they got hired. 
Those who were—of all the whites who were hired, 29 
percent were hired in the same year they took the test, 
within one year; one percent of blacks, a 29-fold differ­
ence in the percentage of those who were hired the same 
year.

Among those who had to wait two or three years after
[104] they took the test to be hired; that’s true of 25 
percent of the whites who ultimately got hired; it’s true 
of 48 percent of the blacks who ultimately got hired.

Now, Justice says again, this is no problem, having 
to wait to be hired. Put aside the fact that the Byrne 
plaintiffs include some people who have apparently just 
a couple of months of delay in reaching their promotional 
ranks, and that’s enough for them to be here in court, 
it’s enough for the Justice Department to come in to 
champion their interests, but the years of delay for 
blacks are no problem, says the Justice Department, be­
cause everyone got retroactive seniority dates, so that 
anybody who did get hired from the 1980 test—put aside



7a

the people who never got hired—but those who did get 
hired have the same seniority date.

What about back pay? Years’ worth of loss of earn­
ings is a fairly significant problem, and the hearing 
examiner’s recommendation makes clear—this is on page 
93, the asterisked footnote at the bottom of the page— 
that the retroactive seniority date has no connection with 
back pay, nobody is receiving any back pay, so there as 
a major problem there that Justice did not see fit to get 
involved in.

THE COURT: Well, maybe they’d like to ask the 
Congress of the United States to raise the federal pay­
ment, so that Ms. Reid and her colleagues, Mr. Reid and 
Mr. Suda and Mr. Grossman and the others, can pay 
these people their back [105] pay and front pay.

MR. SEYMOUR: But it is against the background—
THE COURT: I don’t want the taxpayers to have to 

do it.
MR. SEYMOUR: It is against this background of a 

clear violation of Title VII on the 1980 test that what 
the District is proposing to do on the 1984 test has to be 
weighed.

The Justice Department’s own regulations allow the 
District a choice. They don’t mention this in their pa­
pers, but they allow the District a choice. You can either 
validate and show it’s valid, or you can come up with 
some change in the selection procedures that is guaran­
teed to eliminate the adverse impact. In the additional 
citations of authority we’ve provided today, we’ve pro­
vided copies of the questions and answers to clarify the 
uniform guidelines., and of the uinform guidelines pro­
vision that make that clear.

*  *  *  *