Firefighters Local Union No. 1784 v. Stotts Brief for Respondents

    Nos. 82-206, 82-229

In t h e '

OInuxt 0! %  Itttfri* l^ a te
October Teem, 1983

F irefighters Local Union No. 1784,

Gael W . Stotts, et al.

Petitioner,

Memphis F ire D epartment, et a].,
Petitioners,

v.

Carl W . Stotts, et al.

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

BRIEF FOR RESPONDENTS

Thomas M. D aniel 
R ichard B. F ields*
Cox & F ields

7007 Adams Avenue 
Memphis, Tennessee 
(901) 525-8601

Jack Greenberg 
O. P eter Sherwood 
Clyde E. Murphy 
R onald L. Ellis 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Barry L. Goldstein 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278

Attorneys for Respondents
“ Counsel o f Record



QUESTIONS PRESENTED*

1. Is this appeal moot?

2. Did the district court abuse 
its discretion in issuing a preliminary 
injunction limiting the laying off of 
black employees?

3. Is the consent decree, as 
construed by the courts below, valid? *

*The parties to this appeal are set forth 
in the Brief on the Merits for Petitioner 
Firefighters Local Union No, 1784 (here­
inafter "Union Brief" ) .

l



Questions Presented ......     i
Table of Contents ....................... ii
Table of Authorities ...... ....... iii
Statement of the Case ..................  1
Summary of Argument ......   16
Argument ...............................  24

I. This Appeal Is Moot ........ 24
II. The District Court Did

Not Abuse Its Discretion 
in Issuing a Preliminary 
Injunction Limiting the 
Laying Off of Black 
Employees .............   45

III. The 1980 Consent Decree,
As Construed by the Courts 
Below, Is Valid .........  78

Conclusion ..........................  105
Appendix A: Exhibit A to the 1980

Consent Decree .................   11
Appendix B: Blacks Hired Pursuant to

the 1980 Consent Decree .............. 1b
Appendix C: Blacks Promoted Pursuant

to the 1980 Consent Decree ........... 1c
Appendix D: Least Senior Privates,

June 1981 .............................  Id
Appendix E ......................   1e

TABLE OF CONTENTS
Page

- ii -



TABLE OF AUTHORITIES

Cases
Page

Alabama v. United States, 279 U.S. 229 
(1929) ....................... ....... 49

Alexander v. Gardner-Denver Co., 415 
U.S. 36 (1974) ...................... 91

Bratton v. City of Detroit, No. 80-1837 
(6th Cir.) ........................ 43

Brown v. Chote, 411 U.S. 452 (1973) ... 49
Brown v. Neeb, 644 F.2d 551 (6th Cir. 

1981 ) ................. ............ 52,66
Carroll v. President and Commissioners 
of Princess Anne, 393 U.S. 175 
( 1968) ......... .................... 37,41

Carson v. American Brands, Inc., 450 
U.S. 79 (1981) ..................... 90,97

Chrysler Corporation v. United States, 
316 U.S. 556 (1942) ................ 68,69

Doran v. Salem Inn, Inc., 422 U.S. 922 
( 1975) .............................. 19,49

Dunn v. Blumstein, 405 U.S. 330 (1972) .. 40
EEOC v. American Telephone & Telegraph 
Co., 556 F.2d 167 (3d Cir. 1977), cert, 
denied, 438 U.S 915 (1970) ...........

Ford Motor Co. v. EEOC, U.S. , 73
87,95

L.Ed.2d 721 (1982) ...........  24,90,91,100
Franks v. Bowman Transportation Co., 424 

U.S. 747 ( 1976) ............. ........ 86
- iii -



Fulenwider v. Firefighters Ass'n. Local 
U. 1784, 649 S.W.2d 268 (Tenn. Sup.
Ct. 1 982) .................. ......... 104

Gannett Co. v. DePasquale, 443 U.S. 368
( 1979) ..............................  18,40

Gautreaux v. Pierce, 535 F. Supp. 423
(N.D. 111. 1982) ....................  68

Gerstein v. Pugh, 420 U.S. 103 (1975) .. 40
Hughes v. United States, 342 U.S. 353

( 1952)     65

Cases Page

International Brotherhood of Teamsters 
v. United States, 431 U.S. 324 
(1 977) .......................... .

Lane v. Williams, 455 U.S. 624 (1982) .. 34
Minnick v. Department of Corrections,

No. 79-1213 ...........   101
Moore v. Ogilvie, 394 U.S. 814 (1969) .. 40
Murphy v. Hunt, 455 U.S. 478 (1982) .... 18,34
National Fire Insurance Co. v. Thompson,

281 U.S. 331 (1930) ......... . 49
Nebraska Press Ass'n v. Stuart, 427 U.S.

539 (1976) .................      40
Occidental Life Insurance Co. v. EEOC,

432 U.S. 355 ( 1977) ...................  90
Orders v. Stotts, No. 82-204, October

Term, 1982 ...............................  94

- iv



Roe v. Wade, 410 U.S. 113 (1973) ......  19,40
Rosario v. Rockefeller, 410 U.S. 752

( 1973) .................    40

SEC v. Sloan, 436 U.S. 103 (1978) ...... 37.41
Sosna v. Iowa, 419 U.S. 393 (1975) ..... 35,30
Southern Pacific Terminal Co. v. ICC.

219 U.S. 498 (1911) .................. 33
Stotts v. Memphis Fire Department, No.

80-1489 (6th Cir.) ....... 94
United Fuel Gas Co. v. Public Service
Commission, 278 U.S, 322 (1929) ..... 49

United States v. Armour & Co., 402
U.S. 673 (1971) ...................... 52

United States v. Corrick, 298 U.S,
435 ( 1 936) .................___....... 49

United States v. ITT Continental Banking
Co., 420 U.S. 223 (1975) 21,52

United States v. New York Telephone Co.,
434 U.S. 159 ( 1 977) .............____ 37

United States v. Swift & Co., 287 U.S.
106 ( 1 932) ....... ................... 65

United States v. United Shoe Machinery
Corp., 391 U.S. 244 ( 1 968) ....... 68,69

United Steelworkers of America v. Weber,
No. 76-432, 443 U.S. 193 (1979) ..... 88,97

Cases Page

v



University of Texas v. Camenisch, 451
U.S. 390 (1981) ..................  39,46,49

Weakley Co. Municipal Electric System 
v. Vick, 309 S.W.2d 792 (Tenn. Ct.
App. West. Sect. 1957) ............. . 103

Weinstein v. Bradford, 423 U.S. 147
( 1 975) ......... ..................... 34

Williams v. City of New Orleans,
No. 82-3435 ( 5th Cir.) ..............  43

Statutes
42 U.S.C. § 1981 .... .................. 2
42 U.S.C. § 1983 ......................  2
Title VII, Civil Rights Act of
1964, as amended, 42 U.S.C. § 20Q0e,

et seq............................ passim
Section 703(h), 42 U.S.C § 2000e-

5(h) ............................  passim
Section 706(g), 42 U.S.C. § 2000e-

5(g) ............................  passim
Other Authorities
Assirmative Action Appropriate Under 

Title VII of Civil Rights Act of 1964,
As Amended, 29 CFR § 1608 (1982) ... 88

Executive Order No. 12067 .........   88
42 Opinion of Attorney General No. 37

(Sept. 22, 1969) ..................  89
Uniform Guidelines on Employee Selection

Procedures, 29 CFR § 1607 ......   89

Page

_ vi -



Nos. 82-206, 82-229

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1983

FIREFIGHTERS LOCAL UNION NO. 1784,
Petitioner, 

v.
CARL W. STOTTS, et al.

MEMPHIS FIRE DEPARTMENT, et al.,
Petitioners, 

v.
CARL W. STOTTS, et al.

On Writs of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE 
On February 16, 1977, respondent

Carl Stotts, a black Memphis firefighter, 
filed this class action alleging that



2

the Memphis Fire Department had engaged in 
racial discrimination in hiring and 
promotion in violation of the Fourteenth 
Amendment, 42 U.S.C. §§ 1981 and 1983, and 
Title VII of the 1964 Civil Rights Act. 
(J.A. 9-12). Stotts specifically claimed
that he had been denied promotions solely 
because of his race. (J.A. 10). On June
19, 1979, respondent Fred L. Jones, also a 
black city firefighter, filed a complaint 
with similar allegations, complaining in 
particular that he had been denied promo­
tion to the position of Fire Inspector 
solely because of his race. (J.A. 15-17). 
The two proceedings were consolidated in 
the district court.

This private litigation took place 
against the background of a prior consent 
decree entered into by the City of Memphis 
and the United States Department of Justice



- 3

Decree, which applied to several Memphis 
city agencies, including the fire depart­
ment, required Memphis to achieve "through­
out the work force proportions of black ... 
employees in each job classification 
approximating their respective proportions 
in the civilian work force." {J.A. 101).
In 1981, however, after the United States 
decree had been in effect for seven years,
less than 12% of the uniformed fire depart-

1/ment employees were black, although
blacks accounted for 35% of the Memphis

2/
area work force. In addition, many of 
the positions beyond the entry level 
jobs remained all-white or virtually all-

in 1974. (J.A. 98-115). The 1974 Consent

J_/ Exhibit C, Plaintiffs' Supplemental 
Memorandum In Support of a Preliminary 
Injunction.
2/ City Petition A22.



- 4 -

white. On April 25, 1980, after the
completion of extensive discovery, the 
parties to the private litigation entered 
into a consent decree. Paragraph 6 of that 
decree obligated the city "to raise the 
black representation in each job classifi­
cation to levels approximating the black 
proportion of the civilian labor force." 
(City Petition A64). The decree contained 
several more specific, although not exclu­
sive, requirements as methods of achieving 
this goal. With regard to hiring, para­
graph 7 required the city to attempt to 
fill "on an annual basis at least 50% of 
all vacancies with qualified black appli­
cants." (_Id. ) The city also agreed that

3/

3/ Exhibit C, Plaintiffs' Supplemental 
Memorandum in Support of a Preliminary 
Injunction. These positions included Fire 
Maintenance Mechanic (21 whites, 0 blacks), 
District Chief (35 whites, 1 black), Fire 
Alarm Operator III (20 whites, 1 black), 
Captain (84 whites, 2 blacks) and Driver 
(296 whites, 15 blacks).



5

in making promotions it would seek to 
assure that "at least 20%" of the fire­
fighters promoted into each position were 
black, (Ici. at A65); this obligation was 
included to ensure that the overall goal 
was reached "as quickly as practicable". 
(Id.). The decree required the city to give 
specified promotions to the two named 
plaintiffs and to several other named black

4/
employees listed in an Exhibit A. Some 
of these promotions were to occur imme­
diately, while others were to occur as 
soon as the named individuals passed 
examinations for the positions involved. 
The decree expressly recited that its 
purpose was "to remedy the past hiring and 
promotion practices of the Memphis Fire 
Department", (id. at A64) and "to insure

4/ Exhibit A is set forth in Appendix A
to this brief.



6

that any disadvantage to minorities that 
may have resulted from past hiring and 
promotional practices be remedied....” 
(I d . at A 6 0 ) . The district court was 
authorized to issue "such further orders as 
may be necessary or appropriate to effec­
tuate the purpose of this decree." (Id. at 
A69)

During the year after the entry of the
consent decree a number of problems arose.
Although the decree required the "immediate
promotion" of eight black firefighters
listed in Exhibit A, the city did not

5/
actually promote them for several months 
following final approval of the decree, 
and then only after the plaintiffs filed a 
Motion to Enforce the Consent Decree

5/ The city did increase the salaries of 
these employees following approval of the 
consent decree, but refused to give 
them the rank, insignia, or assignments 
to which they were entitled.



7

declined to hold a test for the position of 
District Chief, thus preventing plaintiff 
Stotts from obtaining the promotion guaran­
teed to him under Exhibit A of the decree. 
Since paragraph 5 of the decree required 
that promotional examinations be given "on 
a regular basis, but in any event, at least 
every two years" (City Petition A64), the 
city's continued refusal to conduct a 
District Chief test after December, 1980, 
the second anniversary of the last such 
test, was a clear violation of the decree. 
Nonetheless, by the end of the first year 
of the decree the city filed reports 
stating that, pursuant to the decree, a
total of 18 new black employees had been

6/
hired, and a total of 18 black fire-

on July 25, 1980. In addition, the city

67 See Appendix B to this brief.



8

On May 4, 1981, however, the city
announced that, because of financial
problems, it intended to demote and lay
off a significant number of firefighters.
The employees to be laid off or demoted
were to be chosen under a Layoff Policy
that had been formulated by the city on
April 29, 1981. (J.A. 82-95). A list of
Fire Department personnel, also issued on
May 4 by the city, contained the names of
39 fire officers initially slated for
demotion; among that group were 23 blacks,
including 8 who had received their promo-

87
tions under the consent decree. The city 
ultimately proposed to demote 14 of the 18 
blacks promoted under the decree, including 
4 of the 8 blacks whose promotions were ex-

77 See Appendix C to this brief.
8/ The list was annexed as Exhibit B to 
Plaintiffs' Supplemental Memorandum in 
Support of a Preliminary Injunction.

1/fighters had received promotions.



9

pressly required under Exhibit A, and
to lay off 15 of the 18 blacks who had

± 0/
been hired under the decree.

On May 4, 1981, plaintiffs sought
and obtained a temporary restraining order 
forbidding the demoting or laying off of 
any employees in the Fire Department. 
(J.A. 20-23). On May 7, 1981, Firefight­
ers Local Union No. 1784 was permitted 
to intervene in this action with the con­
sent of the parties. (J.A. 3). On May 8,
1981, four days after the city announced 
the proposed layoffs, a hearing was held 
on respondents' request for a preliminary 
injunction (J.A. 29-81). Following that
hearing the district court lifted its 
total prohibition against the laying off 
or demotion of black employees. The

9/ See Appendix C to this brief.

1/

10/ See Appendix B to this brief.



10

court held that the city could demote or 
lay off black employees, but only so long 
as it did not reduce the percentage of 
blacks in four specified positions -- 
lieutenant, driver, inspector and private. 
(City Petition A76, A78). The court
directed the city to submit for its 
approval a plan for making any demotions 
or layoffs. (I_d.) This preliminary 
injunction, announced from the bench on 
May 8, 1981, was memorialized in an order
issued on May 18, 1981. The city and
union filed a notice of appeal on May 18, 
1981. (J.A . 5).

On June 22 , 1981 , plaintiffs filed
a Motion for Additional Relief, seeking to 
extend the rule contained in the May 18 
preliminary injunction to five other 
positions in which demotions or layoffs 
were then scheduled —  Fire Alarm Operator



I, Home Fire Safety Representative, Fire 
Prevention Supervisor, Clerk Typist, and 
Research and Development Lieutenant. 
(J.A. 123). Plaintiffs also noted that
the city had not filed its proposed 
plan for compliance with the May 18 order, 
and requested that it be required to do 
so. A hearing on this motion was held 
on June 23, 1981. Although the city did
not submit a written plan to the court, 
the city Personnel Director testified at 
that hearing that the city proposed to 
comply with the May 18 order by exempting 
from demotion or layoff a sufficient 
number of blacks to avoid reducing the 
percentage of blacks in the four positions 
covered by that order. (J.A. 134-35).
In an order dated June 25, 1981, the
district court approved that plan, but did 
not issue any order requiring the city to



12

implement it, (City Petition A83). The 
court refused to extend its May 18 order 
to the positions of Home Fire Safety 
Representative or Research and Development 
Lieutenant, applying it only to the addi­
tional classifications of Fire Alarm 
Operator I, Clerk Typist and Fire Preven­
tion Supervisor. (Id.) Neither the city, 
the union, nor the plaintiffs appealed 
from the June 25 order.

The actual impact of the May 18 
preliminary injunction on the layoffs in 
the Fire Department was extremely limited. 
The city ultimately decided to lay off 
only 24 privates. To comply with the May 
18 order it was necessary that no more 
than 3 of those laid off be black, under 
the city's own Layoff Policy. 6 of the 24 
privates who would have been laid off were



13

whites were actually laid off as a result
of the May 18 order. Those three white

1 2 /
employees, who were laid off on June
26 and 27, 1981, were reinstated on July

J_3/
19, July 20, and July 23, 1981, respec­
tively, each having been out of work 
less than four weeks.

The plaintiffs never sought a final 
injunction with regard to the 1981 layoffs 
or demotions. The July, 1981, recalls 
made any further injunctive relief regard­
ing layoffs entirely unnecessary. Once 
the total number of privates o'n layoff

11/black. Thus only three additional

11/ See Appendix D to this brief. The 
operation of that policy is described in 
detail at pp. 82-84, infra.
12/ Stanley Darden, Gary Dennington, and 
Larry Harmon.
13/ These are the recall dates listed in 
the personnel files of the three white 
employees.



14

fell below 22# the application of the
city's April 29 Layoff Policy itself
assured that the proportion of black
privates would not be lower than the

11/pre-layoff level. Neither the city
nor the union ever asked for a trial to 
finally resolve whether plaintiffs were 
entitled to injunctive relief# or sought 
to lift the preliminary injunction on the 
ground that the plaintiffs had failed to do 
so. This is hardly surprising# for after 
July 23# 1981# the May 18 preliminary
injunction no longer had any operative 
effect on layoffs of Fire Department 
employees.

Both the city and the union# however# 
vigorously pursued their appeal from the 
May 18 preliminary injunction. On May 
7, 1982, the court of appeals affirmed the

14/ Only 3 of the 21 least "senior" pri­
vates were black. See Appendix D.



- 15 -

decision of the district court granting 
the preliminary injunction. The court of 
appeals found that the issuance of that 
preliminary relief was not an abuse of dis­
cretion. (City Petition A31. ) . More spe­
cifically, the Sixth Circuit held that 
there was a reasonable probability the 
plaintiffs would prevail on the merits, 
that the proposed layoffs would cause 
irreparable injury, and that the granting 
of preliminary relief was in the public 
interest. (Id̂. ) The city and union peti­
tioned for writs of certiorari to review 
the court of appeals decision upholding the
May 18 order insofar as it granted a pre-

11/
liminary injunction regarding layoffs.

15/ The Questions Presented in both the 
union and city petitions are expressly 
limited to "layoffs." Although both 
petitions note that the decisions below 
also concerned demotions (City Petition 
3, 5; Union Petition 4, 5), the arguments
contained in the petitions in support of 
granting the writs refer to layoffs



16

SUMMARY OF ARGUMENT

I This is an appeal from a preliminary 
injunction granted on May 18, 1981, The
clear intent of that injunction was only 
to partially preserve the status quo 
threatened by then imminent layoffs, not to 
establish any permanent rule governing 
layoffs. The preliminary injunction merely 
preserves 1981 black employment levels,, 
and is thus literally inapplicable to 
layoffs in 1983 or later in positions in 
which black representation now exceeds 
1981 levels.

Only three whites were actually laid 
off as a result of the May 18 order --

15/ continued
(City Petition 8, 15; Union Petition 8,.
9). While the issue before this Court may 
thus be limited to layoffs, we note where 
appropriate the facts relevant to the 
proposed and actual demotions.



17

Stanley Darden, Gary Bennington, and Larry 
Harmon. All three were recalled within a 
month, and have been back at their jobs 
throughout this appeal. Every person laid 
off or demoted from a position affected by 
the May 18 order has now been reinstated. 
That order thus has no present effect, and 
the underlying controversy is moot.

Petitioners earlier advised the Court 
that the May 18 order had a continuing 
impact on white workers, but that represen­
tation was inaccurate. The order did not 
preclude whites from taking promotional 
examinations, since no such tests were 
given while the layoffs were in effect. 
Neither did the preliminary injunction 
postpone the automatic promotion to captain 
given to certain firefighters with over 30 
years service; that automatic promotion 
applies only to firefighters hired prior to 
1977, and all the firefighters who were



18

laid off had been hired in 1979 or later. 
This is not a dispute "capable of 

repetition, yet evading review." That 
exception to the usual mootness rules 
applies only where there is a "demonstrated 
probability" the dispute will recur, 
Murphy v., Hunt, 455 U.S. 478, 482 (1982).
Memphis has laid off firefighters only once 
in its 162 year history, and is unlikely to 
do so again while the consent decree re­
mains in effect. Layoffs are not by their 
nature so short-lived that controversies 
about them can never be reviewed on appeal. 
Comp a re G a r n e t_t_ _Cov_- __ DePasquale r 443 U.S, 
368, 377 (1979)(pre-trial hearing), Roe v,
Wade, 410 U.S. 113, 125 (1973)(pregnancy).
Layoffs in both private industry and the 
public sector often go on for years, many 
of the "layoffs" in the steel industry, for 
example, are apparently permanent.



1 9

II. Since the order appealed from is only 
a preliminary injunction the question 
before this Court is whether the district 
court abused its discretion in entering an 
order to protect the status quo. Doran v. 
Salem Inn, Inc., 422 U.S. 922, 932 (1975). 
The standard for granting such preliminary 
relief is whether the plaintiff is likely 
to prevail on the merits, and whether the 
plaintiff would suffer irreparable injury 
were that relief denied.

The proposed layoffs would have 
violated the consent decree in several 
ways. (1) Between April 1980 and May 
1981 the defendants, to comply with the 
decree, hired 18 new black firefighters and 
promoted 18 others; the city proposed in 
the spring of 1981 to dismiss 15 of the new 
hires and to rescind 14 of the promotions. 
Exhibit A of the decree specifically 
required the promotion of 9 named indi­



20

viduals, including plaintiff Fred Jones; 
the city proposed to rescind 6 of those 
promotions. (2) Paragraph 6 of the decree 
required the city to "raise" minority 
representation in each position to levels 
comparable to the civilian labor force. 
Paragraph 8 contemplates that this goal is 
to be achieved "as quickly as possible." 
The proposed layoffs and demotions would 
have reduced minority representation, and 
delayed the attainment of the mandated 
employment levels. (3) The expressed 
purpose of the decree is to remedy "any 
disadvantage that may have resulted 
from past hiring and promotional prac­
tices." (City Petition A60-A61). Based on 
the necessarily limited record available at 
the preliminary injunction hearing, the 
district court was justified in concluding 
that the proposed layoffs would "perpetuate 
discrimination". (J.A. 30-31).



21

In considering the likelihood that 
plaintiffs would prevail on the merits, the 
district court properly restricted its 
inquiry to the language and purpose of the 
consent decree. United States v . ITT 
Continental Baking Co 420 U .S . 223
(1975). The district judge's construction 
of that decree is entitled to particular 
deference since he was the same judge who 
had earlier approved the decree and moni­
tored its implementation.

The preliminary injunction did not 
require the city to utilize a race-consci­
ous layoff plan. That order left the city 
free to adopt any plan for reducing per­
sonnel, or otherwise cutting costs, which 
would have avoided any disparate impact on 
minorities. The Firefighters Union offered 
a number of racially neutral plans. 
Neither plaintiffs nor the district court 
expressed any preference regarding how



22

compliance was to be achieved. The choice 
of a race-conscious layoff plan was made by 
the city itself, which cannot now be heard 
to complain about its own selection. The 
union may still disagree with that choice, 
but it never appealed from the district 
court order of June 25, 1981, approving the 
plan.

III. Petitioners contend that the consent 
decree, as construed by the courts below, 
volates Title VII. Their contentions, if 
sustained, would virtually prohibit the use 
of consent decrees in Title VII actions.

Petitiones urge, first, that under 
section 703(h) of Title VII, no consent 
decree can provide any relief adversely 
affecting the seniority rights of whites, 
until and unless there has been a judicial 
determination that every minority benefi­
ciary of the decree was an actual victim of



23

discrimination. They also contend that 
section 706(g) requires such an adjudica­
tion before a court can order into effect a 
consent decree containing injunctive relief 
requiring hiring or promotion adversely 
affecting the interests of whites.

This construction of Title VII has no 
support in the language of the statute, 
in its legislative history or in the cases 
decided thereunder. Moreover, such a 
construction would, if sustained, require 
an employer to take to trial legal or 
factual claims to which it knew there was 
no defense. Complaints seeking hiring, 
promotions, or constructive seniority could 
never be settled on terms favorable to 
plaintiffs. Such an extraordinary limita­
tion on the voluntary resolution of Title 
VII litigation is inconsistent with Con­
gress' expressed preference for concilia­
tion and settlement. Ford Motor Co. v.



24

EEOC , ___ U.S. ___, 73 L. Ed. 2d 721 ( 1982).
Petitioners and the United States 

assert that, as a result of the May 18 
order, junior black employees were retained 
while whites "with more years of service" 
were laid off. (U.S. Brief, p. 21). This 
is not true. The three whites laid off 
as a result of that order were hired on 
the same date as the three blacks who 
remained at work. Under the City's 
Layoff Policy these whites were to have 
kept their jobs, rather than the blacks, 
solely because employees with equal terms 
of service and comparable personnel records 
were ranked alphabetically,. Whatever 
protection section 703(h) may afford to 
seniority systems, it conveys no comparable 
special status on alphabetization.

ARGUMENT
I. THIS APPEAL IS MOOT

The May 18 order from which the city



25

and union have appealed is not a permanent 
injunction regulating all future layoffs, 
but a preliminary injunction clearly 
intended to control only the particular 
layoffs that were impending in the spring 
of 1981. The order is expressly headed 
"Order Granting Preliminary Injunction." 
(City Petition A77). It applies only to 
the four particular positions —  lieuten­
ant, driver, inspector and private —  in 
which demotions or layoffs were then 
planned. (Id. at A78). The minimum 
percentage of blacks which the city was 
to retain was that of blacks "presently 
employed" in those positions, (_Id. at A76, 
A78)(emphasis added), a standard which 
would make no sense if applied to future 
layoffs when minority employment levels 
would doubtless be higher than in 1981. 
Since the proportion of privates, lieu­
tenants and drivers is higher today than in 
1981, the May 18, 1981, order would be



- 26

literally inapplicable to layoffs or
demotions occurring in 1 983 in those±6/
positions. The district judge's reason­
ing was expressly based on the particular 
circumstances that existed in 1981, "the 
effect of these layoffs and reductions in 
rank" (Ici. at A78) and the fact that in 
that year only 11 percent of the Fire 
Department employees were black. (Id. at 
A75) .

All of the 1981 layoffs and demotions 
which were the subject of the May 18 
preliminary injunction have since ended.

16/ The proportion of blacks in each posi­
tion were as follows:

Percent Black Percent Black 
Position January 1981 September 1983
Private 13.6% 16.2%
Driver 4.8% 5.2%
Lieutenant 12.1% 14.0%

(City Petition, A11; Fire Department 
Employee List, September 7, 1983.)



27

By the spring of 1983 every Fire Department 
employee who had been laid off or demoted 
in 1981 had been offered back his old 
position. The preliminary injunction ceased 
to have any operative significance long 
before certiorari was granted, since most 
of those who were laid off or demoted 
following the issuance of that injunc­
tion would have been subject to the same 
action even if no injunction had ever been 
granted. In the case of the layoffs 
subject to the May 18 preliminary injunc­
tion, 21 of the 24 individuals actually 
laid off would have also been laid off 
under the city's own April 29 Layoff 
Policy. Only three whites were actually 
laid off as a result of the May 18, 1981,
order, and the last of them returned to 
work on July 23, 1981.

Whether the May 18 preliminary injunc­
tion is upheld or reversed on appeal is a



28

matter devoid of any practical consequence. 
No white is now out of work, or in a lesser 
position, because of that order, and no 
black is any longer retained in his or her 
job because of it. If the May 18 prelimi­
nary injunction is upheld by this Court, no 
black employee will receive any benefit; 
if that order is reversed, no white will 
profit thereby. Because the May 18 order is 
literally inapplicable to any future 
controversy, whether or not it is sustained 
on appeal will not directly effect any 
layoffs or demotions that might occur 
subsequent to the decision of this Court.

Petitioners, however, have represented 
to this Court that the May 18 order has a 
continuing impact on white employees. 
Petitioners' Joint Opposition to Respon­
dents' Suggestion of Mootness, pp. 5-7. 
First, petitioners assert:



29

[T]hose firefighters entitled under 
municipal charter to promotion to 
captain after 30 years' service (City 
of Memphis Charter, §67) will be 
delayed in the realization of this 
entitlement as a result of their 
layoff. V7/

This is not correct. Section 67 was 
amended in 1976 to confer automatic promo­
tions only on firefighters hired before

± 8/
September 15, 1976. All the employees
laid off in 1981 were hired in 1 979 or
later. Second, petitioners assert:

While reduced in rank . . . more senior 
white firefighters lost their opportu­
nity to take examinations for the 
purpose of securing promotions to the 
next higher rank. 19/

This is not correct. Promotional examina­
tions were given on June 15-19, 1981, prior

17/ Petitioners' Joint Opposition to 
Respondents' Suggestion of Mootness, p. 
5.
18/ The amendment was proposed by Ordi­
nance No. 2488, and approved by a referen­
dum of city voters on November 2, 1976.
19/ Petitioners' Joint Opposition to 
Respondents' Suggestion of Mootness, p. 6 
n . 1 .



- 30 -

to the disputed layoffs. The three whites
laid off as a result of the May 18 order
left their jobs no earlier than June 26,
1981, and returned no later than July
23, 1981,* no examinations were given during
this 28 day period, or at any time prior to
the reinstatement of all the employees on
temporary layoff or demotion. Third,
petitioners assert:

During the period white fire­
fighters were laid off, black 
firefighters with equal or less 
seniority continued to accumulate 
seniority while their white 
counterparts did not. One effect 
of the layoffs has been to render 
these white firefighters less 
senior for purposes of future job 
decisions and entitlements. 20/

The May 18 order does not forbid the city
to give employees seniority credit while
they are on layoff; black and white
employees accrued no such seniority while

20/ Id. at 5.



31

they were laid off solely as a result of
section 6(B) of the city's own Layoff

2.1/
Policy, If the May 18 order is upheld 
on appeal,- the City of Memphis, which 
adopted that policy unilaterally in April, 
1981, could nonetheless,, with a stroke of 
the pen, unilaterally alter that policy to 
provide the seniority credit in question. 
Conversely, even if the May 18 order is 
reversed, employees who were laid off in 
1981 still would receive no seniority 
credit for that period unless the city 
itself chooses to alter its Layoff Policy. 
Either way, it is the City of Memphis, not 
any decision of this Court, which will 
determine whether such seniority credit is

21/ The Layoff Policy was adopted uni­
laterally by the city in April 1981. 
Section 6(B) of that Policy reads:

B. Employees shall not receive senior- 
ty credit during their layoff period. 
(J .A . 95).



32

given to white or black employees. In 
addition, the effect of the May 18 order on 
the seniority of the three whites affected 
was so small that it is exceedingly un­
likely it will ever affect their future
employment status even if the city refuses

22/
to readjust their seniority.

Petitioners also suggest that, even if 
the controversy concerning the May 18 order 
is itself moot, the layoff dispute which 
gave rise to it is one "'capable of repeti­
tion, yet evadint review' Southern Pacific

22/ Darden, Bennington and Harmon each 
lost less than one month of seniority. No 
"less senior" blacks were retained during 
their layoff; the three blacks protected by 
the May 18 order, Jones, Johnson and 
McFadgon, had the same seniority date as 
the whites who were laid off in their 
place. The seniority loss at issue would 
affect Darden, Dennington and Harmon only 
in the unlikely event that in making some 
future layoff, promotion or transfer 
decision the city were choosing between one 
of them and Jones or Johnson. McFadgon is 
no longer employed by the Fire Department.



33

Terminal Co. v. I.C.C., 219 U.S. 498, 515
23/

(1911)." But the exception to the
usual mootness rule announced in Southern 
Pacific Terminal and its progeny is not 
applicable to the instant case.

Petitioners assert that the contro­
versy which led to the May 18 order is 
"capable of repetition" because "there is 
no guarantee that ... in the future" there 
will be no layoffs, and because whether 
such layoffs will in fact occur is "en-

24/tirely speculative." But
[t]he Court has never held that a 
mere physical or theoretical 
possibility was sufficient to 
meet the test.... If this were 
true, virtually any matter of. 
short duration would be review- 
able. Rather, we have said that 
there must be a "reasonable 
expectation" or a "demonstrated 
probability" that the same 
controversy will recur involving 
the same complaining party.

24/ Id. at 3.



34 -

Murphy v. Hunt, 455 U.S. 478, 482 (1982). 
There is in this case no "demonstrated 
probability" that a layoff controversy 
similar to that of 1981 will again occur 
during the limited period during which the 
consent decree will remain in effect. The 
1981 layoffs that precipitated the May 18 
order were the first in the 162 year 
history of the City of Memphis. At that 
rate the next layoff will occur in 2143, 
and will effect only the great-great-

25/

25/ See also Lane v. Williams, 455 U.S. 
624, 633-34 (1982) (no "reasonable expecta­
tion" that defendant would again enter into 
an uninformed plea bargain); Weinstein v. 
Bradford, 423 U.S. 1 47 , 1 49 (1 975 ) (no
"demonstrated probability" former inmate 
would again be incarcerated and seek 
parole); Sqsna v. Iowa, 419 U.S. 393, 
399-400 (1975) (Court will not "speculate" 
that now divorced petitioner meeting state 
residence requirement would subsequently 
marry, move from and return to state, and 
then seek divorce).



35

great-great-grandchildren of the present 
employees. Petitioners decline to "guaran­
tee" that there will be no further layoffs 
while the decree remains in effect, but 
they also do not suggest that the city's 
actual financial condition makes such 
layoffs at all likely. In fact, that 
financial situation has improved so much 
since the issuance of the May 18, 1981
order that in 1 983 the city found it

26/
possible both to hire 63 new firefighters 
and to reduce the city property tax

27/rate. Even if layoffs were to occur to­
morrow, whether they would reduce the 
proportion or even the number of blacks 
in any given position would depend on the 
number and type of layoffs. Had the city

26/ Fire Department Employee List, Sep­
tember 7, 1983.
27/ Memphis Commercial Appeal, May 25,
1983, p. A1.



36

in 1981 laid off 8 privates rather than 24,
for example, every firefighter affected

28/
would have been white , and no injunc­
tive relief would have been necessary. The 
mere possibility that layoffs similar to 
those in 1981 might occur at some point in 
the distant future when the decree may 
still be in effect falls far short of the 
"reasonable expectation" of recurrence 
required by the decisions of this Court, 
See United States v, New York Telephone 
Co., 434 U.S. 159, 165 n.6 (1977) (contro­
versy regarding pen registers not moot 
in light of "the Government's determination
to continue to use them")/ SEC. v._Sloan,
436 U.S. 103, 109 n.5 ( 1978) (controversy
regarding SEC procedures not moot in case 
of "chronic violator" subject to a series 
of Commission orders)/ Carroll v _ President

28/ See Appendix D to this brief.



37

and Commissioners of Princess Anne, 393 U.S. 
175, 178 (1958) (controversy regarding
injunctions against rallies not moot in 
case of political activists who "sought to 
continue their ... rallies").

Should a layoff controversy indeed 
arise while the consent decree remains in 
effect, the legal and factual issues 
presented would doubtless be different than 
in 1981. The identity and proportion of 
blacks and whites affected by any future 
layoff will certainly be different than in 
1981; whether a substantial number of the 
particular blacks then facing demotion or 
layoff will have been hired or promoted 
under the consent decree itself cannot be 
foreseen. Plaintiffs may attempt to prove 
at such a future hearing, as we did not 
in this case, that the new layoffs, or 
the existing or some subsequent Layoff 
Policy, were motivated by racial considera­



38

tions or by a desire to evade the require­
ments of the consent decree. Plaintiffs 
may seek injunctive relief that is broader 
or narrower in scope than that obtained in 
this case. The low proportion of blacks in 
the fire department work force, a signifi­
cant factor in the 1981 decision, will, one 
hopes, have been improved upon. In short, 
should the district court again be asked to 
issue a preliminary injunction with regard 
to layoffs, the legal issues whose probable 
outcome will have to be assessed, and the 
equitable considerations and claims as­
serted by each party, will necessarily 
differ from the record upon which the 
district court based its decision in 1981. 
A future request for a permanent injunction 
would of course be subject to an entirely 
different legal standard than that applic­
able to a motion for a preliminary injunc-



39

tion. University of Texas v. Camenisch,
451 U.S. 390, 394-98 (1981).

Although the May 18 order regarding 
layoffs was moot within a month after it 
was implemented, that does not mean that 
other decisions regarding layoffs will 
necessarily or even probably "evade 
review." This Court has held that require­
ment satisfied only by disputes which by
their very nature were certain to last only 
a few weeks or months, such as controver­
sies concerning the closing of a court

29/
during a pretrial hearing, pretrial de- 

30/
tention, ~~ durational residence require-

29/ Gannett Co. _v. DePasquale, 443 U.S.
368, 377 ' ( 1979) ; Nebraska"'Press Ass 'n. v.
Stuart , 4 27 U.S . "*5 39, ' 546" -47 (1976)
("ftjhese are by nature short-lived").
30/ Gerstein v Pugh , 420 U.S, 103, 110
n 1 ( 1 9 7 5 ).( "Pretrial detention is by
nature temporary,...")> Dunn v Blumstein 
405 U.S. 330, 333 n.2 (1972);"



40 -

11/  11/merits, pregnancy, rules governing
the nomination of candidates for public

11/office, or orders expressly effective
for only a fixed and short period of 

34/
time. Petitioners assert that layoffs are 
by their very nature so brief that they 
"could be expected" to end "during the 
normal time required for the resolution of

H /the controversy." This contention, if
true, would come as welcome news to the 
hundreds of thousands of men and women who

11/ Sosna v. Iowa, 419 U.S. 393, 400-01
(1975); see also Rosario v. Rockefeller 
410 U.S. 752, 756 n.5 (1973).
32/ Roe v. Wade, 410 U.S. 113, 125 (1973).
33/ Moore v. Ogilvie, 394 U.S. 814/ 816
(1969).
34/ SEC v Sloan/ 436 U.S. 103/ 107-110
(1978) (10 day suspension orders); Carroll
v President and Commissioners of Princess 
Anne“ 39 3 U.S. “175/ '17 7 ~(1 968) ( 1 0' day
injunction).
35/ Petitioners' Joint Opposition to 
Respondents' Suggestion of Mootness/ p. 6.



41

formerly worked in the steel automobile 
chemical and other industries, who were 
laid off years ago and who have no realis­
tic expectation of ever being recalled 
Municipal layoffs can be as enduring as 
those in private industry, police officers 
laid off by New York City in 1975 were not 
all recalled until 1982 and Detroit police 
officers laid off in the last recession 
still have not all be recalled, In fact, 
layoffs vary enormously in duration; in 
some instances, as here, employees return 
to work in a matter of weeks, but in other 
cases "layoff is little more than a 
euphemism for permanent dismissal.

The questions raised and briefed at 
length by petitioners are not limited to 
the specific consent decree involved in 
this case, or to the particular legal 
status or treatment of layoffs as such, but 
are for the most part equally applicable to



42

the validity, construction and "modifica­
tion" of any consent decree and to all 
consent decree provisions regarding promo­
tions and other terms and conditions of 
employment. The arguments advanced by 
petitioners regarding the special position 
of seniority systems under Title VII of the 
1964 Civil Rights Act concern the effects 
of a consent decree or judicial order on 
any aspect of such a system. We note that 
the amicus brief filed by the United States 
in this action is substantially the same as
amicus briefs it has filed in other actions

36/
in which layoffs are not at issue. What­
ever questions of ongoing importance 
the petitioners, the amici and the Court 
may believe were raised by the May 18 order

36/ Williams v. City of New Orleans, No. 
82-3435 (5th Cir.); Bratton v. City of 
Detroit, No. 80-1837 (6th Cir.).



43

will not be forever denied appellate review 
merely because they are not resolved in 
this moot litigation.

Long forgotten in petitioners' reso­
lute quest for some landmark decision by 
this Court are Stanley Darden,- Gary Ben­
nington, and Larry Harmon -- the only 
whites actually laid off as a result of 
the May 18 order. Throughout the period 
during which this dispute has raged, first 
in the Sixth Circuit and then in this 
Court, Darden, Dennington and Harmon have 
been back at their jobs at the Memphis Fire 
Department. Their supposed champions, the 
City of Memphis and the Firefighters Local 
Union No. 1 784, could with a stroke of
their pens have restored the month of

37/
seniority and the modest income which

37/ The monthly income of Darden, Denning­
ton and Harmon in 1981 was $1267.63. Each 
of them was laid off for less than a 
month.



- 44 -

Darden, Dennington and Harmon lost while on
layoff. Instead, the city and union have
expended subsantial time and effort, and
paid counsel fees many times greater than
the wages at issue, in a quixotic appeal
which can win no possible relief for the
individuals on whose behalf it has osten-

38/
sibly been pursued. Whether or not the 
district court abused its discretion in 
granting the May 18 preliminary injunction, 
may be a question about which the city and 
union may wish an advisory opinion, or 
about which historians of a later genera­
tion may debate, but that order today 
imposes no restrictions on the defendants 
in this action and confers no benefits on 
the plaintiffs. The issues briefed by the 
defendants and amici concerning the meaning

3 8_/ Petitioners do not contend, for 
example, that Darden, Dennington and Harmon 
would be entitled to an award of back pay 
if the May 18 order were overturned.



45 -

of Title VII are of no greater importance 
to the black and white employees of the 
Memphis Fire Department than to the mil­
lions of other workers whose rights 
and expectations may be affected by any 
construction of that statute. However 
litigious the counsel in this dispute may 
be, the resolution of these issues must 
await the existence of a case whose outcome 
will in fact have a direct and substantial 
effect on the interests of the parties 
themselves.

11• THE_DISTRICT COURT DID NOT ABUSE 
ITS_DISCRETION IN ISSUING A PRE­
LIMINARY INJUNCTION LIMITING THE 
LAYING OFF OF ~BLACK EMPLOYEES

Petitioners in this case seek review 
not of a permanent injunction finally 
adjudicating their rights, but of a pre­
liminary injunction. "The purpose of a 
preliminary injunction is merely to pre­
serve the relative positions of the parties



46

until a trial on the merits can be held ", 
University of Texas v Camenisch^ 451 U. S. 
390, 395 (1981). The proceedings here
"bear the marks of the haste characteristic 
of a request for a preliminary injunc­
tion." <Id at 398. The hearing on that 
request was held a mere four days after the 
layoffs were announced. With the exception
of a single deposition held the day before 

3 9/
the hearing, no discovery was taken, 
the trial judge noted that counsel for the 
parties had not had "the usual time to 
develop the issues, and take discovery, and 
exchange information, and to call on each 
other to state what they think the issues 
are (J,A. 30). The union interven­
ers submitted no written brief in the 
district court, and the brief submitted by

39/ Respondents also attempted without 
success to take the deposition of the city 
personnel director, Joseph D. Sabatini.



47 -

the city understandably contained little of 
the elaborate argument now offered in this 
Court. Neither the parties nor the dis­
trict court at that early stage in this 
controversy could forsee how many indi­
viduals of which race would actually be 
demoted or laid off for what period 
of time; the mayor testified, for example, 
both that "in all likelihood" all those 
demoted or laid off would be restored to 
their jobs "within six months" (J.A. 39),
and that more layoffs were "a definite 
possibility." (J.A. 36).

On the limited record usually avail­
able in connection with a request for a 
preliminary injunction, the responsibility 
of the district court is not to attempt to 
make a final determination of the merits 
of the controversy, but to decide whether 
the party seeking that relief has demon­
strated "that in the absence of its issu-



48

ance he will suffer irreparable injury and 
also that he is likely to prevail on the 
merits." Doran v. Salem Inn, Inc., 422 
U.S. 922, 931 ( 1975). The district court
may also weigh the interests of the op­
posing party, i d ., and of the public. 
University of Texas v. Camenisch, 451 U.S. 
390, 392 (1981). " [T]he standard of
appellate review is simply whether the 
issuance of the injunction, in the light of 
the applicable standard, constituted an 
abuse of discretion." Doran v. Salem Inn, 
Inc. , 422 U.S. at 932; Brown v. Chote, 411 
U.S. 452, 457 (1973); United States v .
C o r r _i c k , 298 U.S. 435, 437-38 ( 1 9 3 6) ;
National Fire Insurance Co. v. Thompson, 
281 U.S. 331, 338 (1930); Alabama v. United 
States, 279 U.S. 229, 230-31 (1929); United 
Fuel Gas Co. v. Public Service Commission,
278 U.S. 322, 326 (1929).



49

The court of appeals, in affirming the 
issuance of the May 18 order, noted the 
prerequisites established by this Court 
for the awarding of such relief (City 
Petition A3Q), and concluded that the 
district judge "did not abuse his discre­
tion in granting the preliminary injunc­
tion." (Id. A31). In this Court, however, 
neither the city nor the union assert in so 
many words that the granting of that 
injunctive relief was an abuse of discre­
tion, or that plaintiffs failed to adduce 
evidence of irreparable injury or proba­
ble success on the merits. Rather, peti­
tioners treat this appeal as if it were 
taken from a permanent injunction, press 
for a final decision on the merits of the 
controversy, and ask the Court to "dismiss 
the request for injunctive relief." (City
Brief, p. 38)



50

Although the briefs of petitioners do 
not directly address the relevant standard 
of review, we treat them as asserting 
that the granting of a preliminary injunc­
tion was an abuse of discretion^ either 
because there was no likelihood that 
plaintiff could prevail on the merits., or 
because of the scope of the injunctive 
relief granted.

Both petitioners and the United States 
discuss at length the legislative history 
of various provisions of Title VII of 
the 1964 Civil Rights Act, Had the May 18 
order been preceded by and based on a trial 
and resolution of the merits of plaintiffs 
claims of racial discrimination, the 
meaning of Title VII would be of undoubted 
importance in ascertaining the appropriate 
scope of injunctive relief. But the merits 
of those claims had been resolved by the 
1980 consent decree. Once that decree was



51

approved, any claims for additional relief 
were to be judged by reference to the terms 
of the settlement itself. " [S]ince 
consent decrees and orders have many of the 
attributes of ordinary contracts, they 
should be construed basically as contracts, 
without reference to the legislation the 
[plaintiff] originally sought to enforce." 
United States v. ITT Continental Baking 
Co. , 420 U.S. 223 , 236-37 (1 975). The
"scope of a consent decree must be dis­
cerned within its four corners," United 
States v. Armour & Co. , 402 U.S. 673, 682
(1971), not by reference to the claims or 
defenses which might have been asserted had 
the action gone to trial. "Few persons 
are in a better position to understand the 
meaning of a consent decree than the 
district judge who oversaw and approved 
it." Brown v. Neeb, 644 F.2d 551, 558 n.12
(6th Cir. 1981) .



52

In the district court proceedings
plaintiffs did not base their request for a
preliminary injunction on an attempt
to prove that the layoffs would violate
Title VII, but argued, as the city notes,
"that the proposed layoffs would violate
the terms of the 1980 Decree." (City

40/
Petition, p.5.). The district court
indicated it believed itself obligated to 
act if the proposed layoffs would have the 
very effect on the Fire Department work 
force "which the Consent Decree undertook 
to avoid." (J . A . 30). The court of

40/ Plaintiffs' Verified Application for 
Temporary Restraining Order asserted the 
layoffs and demotions would "effectively 
destroy the affirmative relief granted by 
this Court in the Consent Decree entered on 
April 25, 1980." (J.A. 21) Plaintiffs'
Supplemental Memorandum in Support of a 
Preliminary Injunction contended the 
layoffs and demotions were "designed 
to thwart gains made by blacks in the last 
two years" and would "violate [] the spirit 
of the 1980 Decree." (Pp. 2-3).



53

appeals, in sustaining the preliminary 
injunction, also relied on the consent 
decree:

The 1980 Decree imposes a duty on 
the City to engage in certain 
affirmative action in its hiring 
and promotion decisions.... The 
City contracted in the ... 1980
Decree[] to accomplish precisely 
that which the layoffs would 
destroy: a substantial increase
in the number of minorities in 
supervisory positions.... [T]he 
City's announcement ... was 
in effect notice of the City's 
intended anticipatory repudiation 
of the ... 1980 Decreet]. The
announcement notified Plaintiffs 
that (1) relief previously 
granted pursuant to the Decreet] 
would be diminished; and (2) 
prospective relief under the 
Decreet] would not be forth­
coming. (City Petition A32-A33).

The court of appeals recognized that the
plaintiffs and district court "merely
sought to compel compliance with the terms
and goals of the Decreet]." (_I d . a t
A33) .



- 54

The record in this case provides a
substantial basis for the conclusion that
plaintiffs would ultimately have prevailed
in their challenge to the layoffs and
demotions as originally proposed. First,
many of the blacks slated for layoff or
demotion had been hired or promoted by the
city within the previous year in order to
comply with the terms of the 1980 consent
decree. Of the 18 blacks whom it had hired
under the decree since April, 1980, the

11/city sought to layoff 15. Of the 18
blacks whom it had promoted under the
decree since April, 1980, the city sought 

42/
to demote 14. Paragraph 9 and 
Exhibit A of the consent decree expressly 
required the city to give immediate promo­
tions to nine specific black employees,

41/ See Appendix B to this brief. 
42/ See Appendix C to this brief.



55

including Fred Jones, one of the named 
plaintiffs. Despite the fact that the 
promotions required by paragraph 9 and 
Exhibit A were not conditioned upon the 
city's financial position, the city 
proposed to demote Jones and five other 
Exhibit A promotees. Had the city an­
nounced in May, 1980, that it was refusing 
for financial reasons to make the promo­
tions required by paragraph 9 and Exhibit 
A, the violation of the consent decree 
would have been obvious. The city's 
proposal in May, 1981, to rescind those 
very promotions in May was hardly a less 
palpable violation. The city's obligation 
to promote and hire the other blacks 
involved was equally unconditional.

Second, paragraph 6 of the consent 
decree obligated the city to take "reason­
able good faith efforts" "to raise the 
black representation in each job classifi­



56

cation on the fire department to levels
approximating the black proportion of the
civilian labor force...." (City Petition

43/
A64)(Emphasis added). This obligation
is equally unconditional? no circumstances 
are mentioned under which the city may take 
steps to actually lower black representa­
tion. The decree does make some allowance 
for unforeseen problems in providing that 
efforts to "increase" minority representa­
tion need only be "reasonable;" thus 
paragraph 6 might plausibly be read not to 
require the city to hire or promote new 
blacks into positions from which it was at 
the same time actually laying off or 
demoting whites. But that qualification 
falls far short of authorizing the city to 
reduce black representation. The United

43/ The city recognizes that paragraph 6 
is not merely precatory, but creates 
an enforceable obligation. City Petition? 
p. 4.



57

States dismisses paragraph 6 by insisting 
that any reduction in the black work force 
is merely a "delay in achieving the order's 
goal," (D.S. Brief, p, 21 n.18). But the 
manifest purpose of the decree is to 
achieve that goal with all reasonable 
dispatch. Paragraph 8 requires the city 
to attempt to fill 20% of all promotions 
with blacks "[t]o insure as quickly as 
possible the attainment of [the] long 
range goal," (City Petition A65)(Emphasis 
added). The 50% hiring goal in paragraph 7 
obviously has the same purpose. The 
United States may be in no hurry to see an 
increase in minority employment in the 
Memphis Fire Department, but under the 
consent decree time is clearly of the 
essence.

Third, the consent decree recites that 
its purpose is to ensure "that any disad­
vantage that may have resulted from past



58 -

hiring and promotional practices be reme-
44/

died...." (City Petition A60-A61) The 
city and union correctly recognize that 
if a black had less seniority because of 
past discrimination, a layoff or demotion 
based on that reduced seniority would 
perpetuate and aggravate a "disadvantage 
that . . . resulted from past hiring and 
promotional practices." Such disadvantages 
would also be perpetuated if, because of 
the discriminatory denial of a promotion, a 
black were excluded from a position in 
which no layoffs or demotions occurred; 
there were, for example, no demotions or 
layoffs in 1981 from the position of 
captain, but then as now virtually all the 
captains were white. The city and union

44/ See also id. at A64, ("The purpose of 
this decree is to remedy the past hiring 
and promotion practices of the Memphis 
Fire Department with respect to the employ­
ment of blacks....").



59

assert that, although the layoffs and 
demotions may well perpetuate the effects 
of past racial discrimination, the dis­
trict court had no authority to prevent 
that perpetuation because Title VII does 
not authorize redress for disadvantages
caused by the operation of a seniority 

45/
system. But it is by the words of the
consent decree, not of Title VII, that 
the district court's actions must be 
measured, and the decree states without any 
limitation an intent to correct " any 
disadvantage" rooted in past discrimina­
tion. (Emphasis added). The layoff or 
dismissal of a black employee because of 
lesser seniority or occupancy of a lesser 
position due to past discrimination would 
clearly thwart that stated purpose, and the 
district court correctly concluded that

45/ Union Brief, p. 21? City Brief, p. 27.



underxthe consent decree the city could not 
"lay people off in a manner that will 
perpetuate discrimination against black 
people." (J.A. 30-31)

The United States, however, in an 
argument embraced by neither the city or 
the union, asserts on no fewer than six 
occasions that the blacks who benefitted 
from the May 18 order were not victims of 
any unlawful employment discrimination, 
(U.S. Brief, pp. 9, 11, 12 n. 13, 20, 21, 
29), claiming that this is "conceded []." 
Id. at 20. But the record in this case 
contains nothing to substantiate that 
assertion, and the pleadings do not reveal 
any such concession. As a practical 
matter, neither party was in a position at 
the hearing of May 8, 1981, held only four 
days after the announcement of the proposed 
layoffs, to adduce evidence regarding which 
of the blacks affected were the victims of

- 60 -



61

past discrimination, or even to ascertain
with certainty who those black employees 

46/
would be. Counsel for the city actually 
objected at that hearing to the introduc­
tion of any evidence regarding discrimina­
tion that had occurred prior to the consent 
decree. (J A 58-59). The district judge, 
based on his familiarity with the extensive 
discovery that had occurred prior to the 
settlement of the case in 1980, concluded:

[I]t would be naive not to 
realize that the Fire Department 
of this City was very discrimina­
tory towards black people for 
years, and it really wasn't 
corrected properly until the 
Consent Decree was entered in 
this cause. 47/

46/ Of the three blacks who avoided layoff 
because of the May 18 order, two —  Johnson 
and McFadgon -- had been rejected for 
employment by the Fire Department in 
1977.
47/ City Petition A73.



62

Regardless of whether, had a trial on the
merits been held, the consent decree would
have been construed to require the plain- 

48/
tiffs, or to permit the defendants, to 
adduce evidence regarding whether particu­
lar blacks were the victims of discrimina­
tion, the granting of preliminary relief 
in light of the unavoidably limited 
information available at the May 8, 1981
hearing, was clearly not an abuse of 
discretion.

The city and union repeatedly object 
that the decision of the district court 
imposed on the city new obligations to 
which it had never agreed. But their 
characterization of the requirements of the 
May 18 order as "new" is merely a con-

48/ Clearly no such proof was relevant to 
paragraphs 6 and 9 of the decree. See pp. 
54-57, supra.



63

elusory method of reasserting their dis­
agreement with the decision below that the 
proposed layoffs and demotions would 
have violated the 1980 consent decree. The 
fact that layoffs and demotions are not 
expressly mentioned in the decree did not 
mean that the city was free to violate or 
frustrate the provisions of the decree so 
long as it did so by means of layoffs or 
demotions. Under paragraph 17 of the 
decree, moreover, the district court is not 
limited to forbidding violations of the 
particularized requirements imposed by the 
decree, but can also issue "such further 
orders as may be necessary or appropriate 
to effectuate the purposes of this decree." 
(City Petition A6 9 ) (Emphasis added).

The court of appeals, in addition to 
sustaining the preliminary injunction as 
based on a plausible construction of the



64

decree, also held in the alternative that 
the district court had the authority to 
"modify" the consent decree to limit 
layoffs and demotions of black employees. 
(City Petition 2A, 12A, 31A-37A). This
case does not involve a "modification" of 
the consent decree in the sense in which 
that term is used in United States v. Swift 
& Co. , 286 U.S. 106 ( 1932). In Swift the
defendants asked the Court to release them 
from provisions of a consent decree ex­
pressly forbidding them to operate retail 
meat markets or engage in other specified 
activity. This Court held that the express 
requirements of such a decree would not be 
lifted in the absence of "a clear showing 
of grievous wrong evoked by new and unfore­
seen conditions...." 286 U.S. at 119. 
Similarly, in Hughes v. United States, 342 
U.S. 353 (1952), this Court declined to
modify a consent decree to alter a provi­



65

sion expressly authorizing the defendant to 
own certain stock. 342 U.S. at 357-58. 
But the consent decree contains no such 
express reference to or authorization of 
layoffs or demotions on any particular 
basis; it is literally silent on the 
subject. There is in the decree no layoff 
provision to "modify."

The use and meaning of the term 
"modify" by the courts below derives from 
the opinion of Judge Bailey Brown in B_rown 
v. Neeb, 644 F.2d 551 (6th Cir. 1981). In 
Brown v. Neeb, as here, the district judge 
had limited the layoffs of black employees, 
relying on a consent decree that dealt 
solely with hiring and promotions. Judge 
Brown concluded,.

[Ejven if layoffs by seniority 
were not proscribed by the 
consent decree as originally 
entered, the district court had 
the authority to, in effect 
modify the consent decree to



66  -

proscribe layoffs by seniority. 
This is true since the district 
court ... determined that such 
was necessary, due to changed 
circumstances, to carry out the 
expressed purpose and goal of 
the consent decree.

644 F .2d at 565. The consent decree in
Brown_ v. Neeb contained a section, similar

49/
to paragraph 17 in the instant case, 
empowering the court to enter "such further 
orders as may be appropriate to effectuate 
the provisions of the Order...." 644 F.2d 
at 555. Regardless of whether judicial 
action under such provisions is character­
ized as a "modification" of the more 
specific provisions, it remains action 
authorized by and within the four corners 
of the decree itself.

Even in the absence of paragraph 17, 
the order of the district court is sustain-

49/ See p. 64, supra.



67

able as an exercise of the inherent 
authority of federal courts to enter orders 
necessary to ensure that a change in 
circumstances does not frustrate the 
remedial provisions of a consent decree. 
In exercising that authority the standard 
to be applied is "whether the change 
[would] serve[] to effectuate or to thwart 
the basic purpose of the original consent 
decree." Chrysler Corporation v. United 
S t a t. ££, 316 U.S. 556, 562 (1942); see
also United States v. United Shoe Machinery 
Corp., 391 U.S. 244, 248-49 (1968). "If a 
plaintiff can show that modification of 
the decree is crucial to the effectuation 
of the purpose the decree was intended to 
achieve, then a grievous wrong would be 
perpetrated if the decree was not modi- 
fied." Gautreaux v. Pierce, 535 F. Supp.
423, 426 n.7 (N.D. 111. 1982). Regardless
of whether the steps which the city pro­



- 68

posed to take were technically a violation 
of the consent decree, the authority 
recognized in Chr^sler_Cor2 orati.on_v. 
United States and United States v. United 
Shoe Machinery Corp. was properly exer­
cised to prevent actions which would have 
"virtually destroyed" the relief which 
plaintiffs had negotiated and obtained in 
and under the consent decree. (City 
Petition A32).

Petitioners contend that affirmance of 
the Sixth Circuit decision will discourage 
settlement of Title VII actions by prompt­
ing fears on the part of employers that 
consent decrees will be construed to impose 
new and unbargained for obligations. 
(City Brief, pp. 34-36; Union Brief, p. 25). 
But it could be argued with equal force 
that the reversal of that decision would 
deter settlements by raising fears on the 
part of Title VII plaintiffs that consent



69

decrees will be rendered nugatory by 
changing circumstances or subsequent 
interpretation. In reality, whenever 
an individual or organization enters into a 
written agreement, be it a consent decree, 
a contract, or a lease, there is always 
a danger that the document will be inter­
preted more broadly or narrowly than may be 
desired. Better drafting, not rules of 
construction guaranteeing success in 
litigation to one party or the other, is 
the traditional and appropriate method of 
minimizing such risks. Regardless of the 
outcome of the instant litigation, its 
primary impact on Title VII settlements 
will be to prompt the attorneys negotiating 
future consent decrees to spell out with 
precision how any layoffs and demotions are 
to occur, rather than agreeing to decrees 
which, as here, are concededly "silent" on



70

those issues. (City Brief, p„ i, Union 
Brief, p. i) .

The parties also appear to attack the 
particular form of injunctive relief 
awarded by the district court, The union 
accuses the court of having "abrogated" the 
seniority system. (Union Brief, p. i). 
The city charges that the trial judge 
with "requiring layoffs to be based upon 
racial considerations." (City Brief, p. 
i). The United States claims "the decree 
required the City to layoff employees in 
accordance with racial quotas." (U.S. 
Brief, p. 24).

The actual language of the May 18 
order does not require any race-conscious 
standard be used for selecting the employ­
ees to be laid off. That injunction only 
limited the use of the seniority system

insofar as it will decrease the 
percentage of black lieutenants,



71

drivers, inspectors and privates 
that are presently employed....

(City Petition, A78)(Emphasis added). This
order? even if extended to all positions in
the Fire Department, still permitted the
routine application of the seniority system
in a wide variety of circumstances. First,
as we have seen, whether seniority based
layoffs would reduce the percentage of
black employees depended on the total
number of layoffs. If, for example,
the city had chosen to lay off 21 privates
rather than 24, there would have been no

50/
disparate impact."' Thus, even though the 
May 18 order was subsequently applied 
to clerk typists, it had no effect there 
since "the original seniority system did 
not operate so as to reduce the percentage 
of minority employees." (City Brief, p. 8

50/ See Appendix D to this brief.



72

n.13). In addition, many positions re-
11/

mained all-white; layoffs there would 
have had no racial impact whatever. The 
May 18 order did not forbid the complete 
elimination of a position, since that would 
result in the laying off of ail, employees 
holding it, and the city subsequently 
proceeded to reduce employment in just that 
manner. (See City Petition A82-A83). 
Since the positions, and number of indi­
viduals in each, to be subject to layoff 
was not governed by the Layoff Policy, but 
remained in the discretion of the mayor 
(J.A. 83), a more sensitive consideration
of where the layoffs were to be made would 
have satisfied the May 18 order without the 
slightest violation of the seniority 
system.

51/ In January, 1981, there were a total 
of 92 whites in all white positions. 
Exhibit C ,  Plaintiffs Supplemental Memoran­
dum in Support of a Preliminary Injunction.



73

While this case was still pending in
the district court, the union itself urged
the adoption of a number of racially
neutral plans entirely consistent with the
May 18 order. The Firefighters Union
attempted to persuade the city to avoid the
necessity for layoffs by giving employees
the option of taking voluntary unpaid
leaves of absence in order to preserve the

52/
jobs of their colleagues. The American
Federation of State County and Municipal
Employees suggested that each employee be
permitted or required to take off one day

53/
per month without pay. In its Answer,
the Firefighters urged that the court 
enjoin all layoffs in the Fire Department 
(J A. 25)/ forcing the city to make the

52/ Memphis Commercial Appeal, June 25,. 
1981, p. 17.
53/ Id



74 -

needed cuts in agencies which provided less 
essential services and which were not 
subject to the requirements of the consent 
decree. The mayor noted that the need for 
layoffs might be avoided simply by reducing 
the number of hours worked by some or all 
employees. (J.A. 38). The court observed 
that the city might achieve a similar 
result by providing incentives for early 
retirement. (J.A. 74). In this Court,
the Amicus American Jewish Congress sug­
gests a number of other racially neutral 

54/
alternatives that might have been 
utilized.

But while there were thus a variety of 
racially-neutral methods available for 
complying with the May 18 order, the 
district court left the choice of method up

54/ Brief of the American Jewish Congress, 
Amicus Curiae, in Support of Respondents, 
pp. 28-39.



75

to the city. Plaintiffs took no position 
in the district court regarding how compli­
ance should be achieved. It was the city, 
not plaintiffs or the trial judge, which 
selected the race-conscious plan that the 
city personnel director first described to 
the court on June 22, 1981 . (J.A. 132).
The district judge did not, as the city 
asserts, subsequently "require[] layoffs 
which contravened ... the seniority provi­
sions" (City Brief, p. 37)(Emphasis 
added) or "impos[e] ... a race conscious
layoff policy on an objecting municipality"
(id.)(emphasis added); the court's June 25 
order merely "approved" the method selected 
by the city itself. (City Petition A83).

The union, of course, is not responsi­
ble for the race-conscious plan chosen by 
the city. Here, as in the district 
court, the union objects to the city's 
choice. The trial judge, noting the



- 76 -

union's objections to the procedures 
for implementing that policy, observed "I 
didn't call for the layoff, but I'm cer­
tainly not going to be a vehicle to get in 
this dispute between the Union and the 
City...." (J.A. 138). The union, however,
chose not to appeal from the June 25 order, 
and thus is not entitled to ask this Court 
to resolve its disagreement with the city 
about that plan.

The injunctive relief granted by the 
district court was, in comparison with the 
consent decree violations involved, quite 
limited. The temporary restraining order 
approved on May 4, 1980, had forbidden the
city to lay off or demote any black 
employees; had the preliminary injunction 
contained a similar provision, it would 
have had the effect of raising the propor­
tion of blacks in several positions, thus 
carrying out paragraph 6 of the consent



77

decree. Under the preliminary injunction
actually entered, the city was permitted to
lay off 18 black employees and to demote 5 

5_5/
others. The district court might have
forbidden the city to lay off any employee
hired as a result of the consent decree;
had it so ruled the city would have been
able to lay off only 6 black employees,

56/
rather than 18. The limited relief
actually afforded by the preliminary 
injunction relief clearly did not con­
stitute an abuse of discretion.

111. THE CONSENT DECREE, AS CONSTRUED BY 
THE COURTS BELOW, IS VALID

Assuming, arguendo, that the courts
below correctly interpreted the consent

55/ See Appendices B and C to this brief, 
and Addendum A to the City Brief.
5Jj/ See n. 55, supra. The court of 
appeals regarded district courts decision 
as reducing the city's obligations under 
the consent decree. City Petition A34.



78

decree, the union and city contend that 
the consent decree as so construed is 
invalid. The union asserts that the 
relief imposed by the district court 
"exceeds even that relief to which the City 
and respondents might permissibly have 
consented." (Union Brief, p. 22 n. 17). 
The city urges that the decree as construed 
below "conflicts with congressional purpose 
as clearly expressed in [Title VII] and as 
clearly expounded by this Court in prior 
cases." (City Brief, p. 26). The conten­
tions of the city and union are of con­
siderable importance since they would, if 
sustained, preclude the resolution through 
conciliation and settlement of a substan­
tial portion of all Title VII cases.

The arguments of petitioners and of 
the United States are grounded on section 
703(h) of Title VII, which immunizes 
certain seniority systems from challenge



79

under Title VII, and section 706(g) of Title 
VII which describes the remedial authority 
of a district court to enforce Title VII. 
All three acknowledge, as they must, that 
there are circumstances which, if found by 
a court after a trial on the merits, would 
require issuance of an order similar to 
that of May 18; such relief would be 
appropriate, for example, if a court held 
that the affected blacks were the victims 
of prior discrimination, or that the 
seniority system was not bona fide. They 
contend, however, that Title VII forbids a 
defendant from agreeing in a consent decree 
to the very relief for which it would be 
liable if plaintiffs prevailed at trial. 
Thus the United States urges "it is clear 
that the City could not unilaterally 
contract away the incumbent employees' 
seniority rights (U.S. Brief p. 22 n.
20), The city repeatedly argues that



- 80

seniority relief can only be provided to 
"persons who have ... been ad judged 
victims of past discrimination." (City 
Brief, p . 29; see also i_ d . at 2 6, 31,
33)(Emphasis added).

Whatever the merits of these conten­
tions, their relevance to this case depends 
upon the assumption that the May 18 
order required that more senior whites be 
laid off while less senior blacks remained 
at work. The United States contends, 
"As a result of the district court's 
decree, white firefighters with more years 
of service than black employees were 
furloughed ..." (U.S. Brief, p. 21). The
city advises the Court that "non-minority 
employees with greater seniority than 
skipped-over minority employees were laid 
off . ..." (City Brief, p. 9). The union 
represents that "[a]s a result of [this] 
order [], the City was required to lay off



81

... more senior incumbent nonminority 
employees..." (Union Brief, p. 26).

The facts of this case are otherwise. 
As is apparent from Addendum B to the

57/City's brief, the three whites laid
off as a result of the May 18 order,
Harmon, Bennington and Darden, were all
hired on November 5, 1979, the same day as
the three blacks, Jones, Johnson, and
McFadgon, who, as a result of that order,

58/
were "retained in position". Far from 
having "more years of service", as the

57/ See also Appendix D to this brief.
58/ The city declares that since 1974 
blacks have been hired in numbers "far 
exceeding the minority percentage within 
the civilian labor force." City Brief, p. 
29, n.25. In fact, the city did no hiring 
between 1 974 and 1 977. While it hired 
between 1 977 and 1 980, blacks were ap­
pointed in proportions that were somewhat 
lower than the rate at which blacks applied 
for employment.



82

United States asserts, those three whites 
had not served so much as a day longer than 
their three black co-workers. Since all 
six employees had identical seniority, the 
city's Layoff Policy could not, and 
did not/ select those to be laid off on the 
basis of seniority. Rather, under para­
graph 3(c) of the Layoff Policy (J.A. 85),
when several employees have the same 
seniority, the choice of the employees to 
be laid off is to be made by city supervi­
sory officials after reviewing the person­
nel records of the employees concerned. 
Where employees are deemed to have identi­
cal records, they are to be ranked alpha- 

59/
betically.

59/ The Layoff Policy provides that the 
ranking of employees with identical records 
and seniority is to be based on any method 
provided by an applicable Memorandum of 
Understanding with a union. (J.A. 85-86). 
The Memorandum of Understanding with the 
Firefighters calls for alphabetization. 
(J.A. 117).



83

In the instant case the city appar­
ently concluded that the records of all 
employees hired on November 5, 1979, were
indistinguishable, and therefore ordered 
those employees alphabetically. (See City 
Brief, Addendum B). Thus, under the Layoff 
Policy, McFadgon, Johnson and Jones were to 
have been laid off because "J" and "M" 
are after "D" and "H" in the alphabet, and 
because their employment records were only 
as good as, but not better than, those of 
Harmon, Dennington and Darden. The
principle the city proposed to apply was

6 0/
not "last hired, first fired", but
"simultaneously hired, reverse-alphabeti- 
cally fired." Such a scheme is no more a 
"seniority system" than pulling names at 
random out of a hat. Whatever importance

60/ See City Petition, p. 5; Union Brief, 
pp. 11, 40.



84

Congress may have attached to rights 
acquired by greater length of service, 
Title VII evinces no intention to attach 
any talismanic significance to the sort of 
arbitrary method utilized under the Layoff 
Policy.

Even if the May 18 preliminary injunc­
tion had affected seniority rights rather

61/
than alphabetical rights, that order, and 
the consent decree being so enforced, would 
not have transgressed the provisions of 
Title VII. First, section 703(h) of Title 
VII does not insulate a seniority system 
from alteration in the fashioning of a 
remedy. Rather, that section helps to

61/ The preliminary injunction did result 
in demotions of more senior whites in place 
of less senior blacks. City Brief, A5-A8. 
The seniority system in the Memorandum of 
Understanding, however, applies only to 
layoffs. (J.A. 116-119). See also n.15, 
supra.



85

define what is and is not a violation 
of the Act, see e.g. , Teamsters v. United 
States, 431 U.S. 324 ( 1977), but it in no
way limits the remedial authority of the 
federal courts. Franks v. Bowman Trans­
portation Co., 424 U.S. 747, 758 (1976).
In the instant case it is the language of 
the consent decree, not the terms of Title 
VII, which determines the relief to which 
respondents are entitled to relief.

Second, Petitioners do not deny that a 
plaintiff could, consistent with Title VII, 
win at trial relief similar to or even 
broader than that contained in the May 18 
order. They urge, however, that a defen­
dant may not agree to, and a court should 
not approve, a settlement containing 
precisely the same relief. On this view an 
employer, however certain it might be of 
losing at trial, could not acquiesce in a



86 -

settlement which had any adverse impact on 
the seniority rights or expectations of 
white employees. The effect of such a rule 
would not be limited to consent decree 
provisions regarding layoffs; most remedial 
action traditionally contained in consent 
decrees would be also forbidden. Where 
seniority is a factor in promotions, for 
example, a consent decree establishing 
goals for future minority promotions would 
be invalid. Not a single black employee 
could receive a promotion in such a case 
unless and until a federal judge, after a 
hearing on the merits, first concluded that 
the employee was an "actual victim" of 
discrimination.

A Title VII case alleging discrimina­
tion in hiring, and seeking constructive 
seniority for the alleged victims of that 
unlawful practice, simply could not be 
settled on terms favorable to the plain­



87

tiffs. Disputes about whether a seniority 
system was bona fide, or about the identi­
ties of the blacks denied seniority because 
of discrimination, could never be resolved 
short of trial. The United States candidly 
acknowledges that this interpretation of 
Title VII would, in the view of the Equal 
Employment Opportunity Commission, "call 
into question numerous extant consent
decrees and conciliation agreements to

62/
which the EEOC is a party." (U.S. Brief 
p. 24 n. 23).

6_2/ This observation applies with equal 
force to the many judgments and consent 
decrees to which the United States is a 
party because the United States' position 
in this case is a recent departure from the 
consistent position it has taken in prior 
years. For example, in a brief filed in 
the Third Circuit on December 13, 1976 in
EEOC v. American Telephone and Telegraph 
Co. , 5 56 F . 2d 167 ( 3d"C ir. 1  9 7 7 ) , cert/
denied/ 438 U.S. 915 (1978) the United
States and the E.E.O.C. argued that

The district courts remedial authority 
under Section 706 (g) ... to order
race ... conscious goals to correct



88

62/ continued
the effects of past discrimination is
not limited by Sections 703(a), (j) or
( h )  .

Respondents have reproduced the Govern­
ment's persuasive argument to the Third 
Circuit at Appendix E of this brief.

It should also be noted that the 
present position of the United States 
is in direct contravention of existing 
regulations and guidelines of several 
Federal Agencies, including those of the 
Department of Justice. See, e . g., Affirma­
tive Action Appropriate Under Title VII of 
the Civil Rights Act of 1964, As Amended, 
29 C.F.R. § 1608 (1982) (specifically
endorsing the use of goals and timetables 
in affirmative actions plans "regardless of 
whether the persons benefited were them­
selves the victims of ... past discrimina­
tion,") 29 C.F.R. § 1608.4(c). The regula­
tions promulgated by the EEOC are particu­
larly persuasve for Congress has directed 
that the EEOC coordinate efforts by all 
federal agencies to enforce equal employ­
ment opportunity laws and policies. See 42 
U.S.C. § 2000e-14, as amended by Reorgan­
ization Plan No. 1 of 1978, 43 Fed. Reg.
19807 (1978). See also Executive Order No. 
12067,, requiring the EEOC to "provide 
leadership and coordination to the efforts 
of Federal departments ... to enforce all 
Federal statutes . . . which require equal 
employment opportunity ..." 43 Fed. Reg.
28967 (July 5, 1978). See also Brief
for petitioners the United States and the 
Equal Employment Opportunity Commission, 
United Steelworkers of America v. Weber, 
No. 76-432, at 26-35, reprinted 42 Op.



89

The United States and petitioners
appear to go even further, and urge that a
consent decree is invalid if it provides
any relief to a black who is not a proven
victim of discrimination. (City Brief, pp.
23-30; Union Brief pp. 30-37, United States
Brief, pp. 23-29). They rely on section
706(g) of Title VII, 42 U.S.C. § 200Qe-
5(g), which provides in part:

No Order of the court shall require 
... the hiring ... or promotion of 
an individual as an employee, or the 
payment to him of any back pay, 
if such individual was ... refused 
employment or advancement .. . for any 
reason other than discrimination.

Petitioners contend that this provision is
fully applicable to a consent decree,
and prohibits a court from ordering into

62/ continued
Att'y Gen. No. 37 (Sept. 22 , 1 969 );
Uniform Guidelines on Employee Selection 
Procedures, Appendix (Policy Statement on 
Affirmative Action), 29 C.F.R. § 1607.17
( 1982).



90

effect a consent decree which contains any 
of the relief specified in section 706(g) 
unless every minority beneficiary has been 
adjudged by the court to be the victim of 
discrimination. This contention, if sus­
tained, would virtually abolish consent

63/
decrees in Title VII cases. Despite Ford

63/ The limitation on the settlement of 
civil litigation now advocated by the city, 
the union and the United States has no 
precedent in federal law. It would compel 
employers to defend practices and decisions 
they knew to be unlawful, and then to pay 
the prevailing plaintiffs an attorneys fee 
for work done at trials whose outcome was 
never in doubt. Requiring the trial of a 
substantial number of employment discrimi­
nation cases in which the plaintiffs and 
defendants are in complete agreement 
regarding the legal and factual issues 
involved might be justified if the language 
and legislative history of Title VII 
demonstrated implacable congressional 
opposition to settlement by consent decree. 
But that history and language reveal, on 
the contrary, that Congress expressed a 
particular preference for such voluntary 
resolution of Title VII litigation. Ford 
Motor Co. v. EEOC, 73 L.Ed.2d 721, 730
( 1 9 8 2); Carson v. American Brands, Inc. , 
450 U.S. 79, 88 n. 14 (1981); Occidental
Life Insurance Co. v. EEOC, 432 U.S. 355,



91

Motor Co. v. EEOC, 73 L.Ed.2d 721 (1982),
no court could approve, prior to trial, a 
consent decree ordering the hiring or 
promotion of a single individual. Equally 
impermissible would be consent decree 
awards of back pay, since section 706(g) 
applies to monetary as well as injunctive 
relief. Measured by the standard now 
advanced by the city, the consent decree in 
this case, even under the narrow construc­
tion urged by the city itself, would be 
invalid, since it required the promotion of

63/ continued
368 (1977). Alexander v. Gardner-Denver
Co., 415 U.S. 36, 44 (1974). Any restric­
tion on the scope of relief which may be 
encompassed by a consent decree would be 
inconsistent with the principle announced 
in Ford Motor Co. v. EEOC that "the legal 
rules fashioned to implement Title VII 
should be designed ... to encourage Title 
VII defendants promptly to make curative, 
unconditional job offers to Title VII 
claimants" 73 L.Ed.2d at 730.



92

13 named individuals, directed the payment 
of back pay to a larger group, and com­
pelled the city to meet a goal of 50% 
minority hiring and 20% minority promotions, 
all without a judicial determination that 
any of the beneficiaries were actual 
victims of discrimination. This view, 
embraced by the United States as well, 
would invalidate the consent decree entered 
into in 1974 between the United States and 
the city, since that decree also estab­
lished a 50% minority hiring goal. See 
also n.62, supra.

The extent to which petitioners' 
contentions would, if sustained, interfere 
with the routine settlement of Title VII 
litigation is illustrated by the complete 
inconsistency between the arguments now 
advanced by the city in attacking the May 
18 order and the arguments the city made 
two years ago in defending the very consent



93

the announcement of the city's intention to
enter into that decree, a group of white
firefighters, including D. L. Orders,
sought to intervene in this litigation and
attempted to seek modification of that
decree. In appealing from the denial of
intervention, Orders made virtually the
same argument now advanced by the city,
objecting in particular to the 20% minority
promotion goal. Orders contended:

The Defendants did not adequately 
represent Appellants' interests 
when they agreed to promotion 
goals which have an adverse impact 
upon non-minority employees, the 
court not having found any past 
and continuing discrimination 
in promotions to warrant such 
equitable relief. Title VII does 
not allow preferential promotion to 
individuals not shown to be vic­
tims of past discrimination. ... 
Therefore, the district court erred 
in granting class-based relief to 
persons who are not identifiable 
victims of specific discrimina­

decree involved in this case. Following



94

tion. . . . To deprive non-minority 
employees of the expectations of 
advancement by promotional 
goals for minority employees absent 
a finding of continuing discrimi­
nation in promotions is an improper 
violation of ... their statutory 
rights under Title VII. Jd 4 /

The city responded:
The facts reveal . . . continuing 
past discriminatory practices 
[which] clearly support the use of 
the promotional goals provided for 
by the Decree.... [T]he entry of 
the Decree is a determination by 
the Court of Plaintiffs' ... 
probability of success on the 
merits.... [T]he Consent Decree 
providing for promotional goals is 
not improper as the Decree is a 
determination that Plaintiffs 
claims of past racial discrimina­
tion were supported by the 
facts... 65/

64/ Brief on Behalf of Proposed Interve- 
nors-Appellants, Stotts v. Memphis Fire 
Department, No. 80-1489 (6th Cir.) p. 
20. Orders advanced the same argument in 
this Court. See Petition for Writ of Cer­
tiorari, Orders v. Stotts, No. 82-204, 
October Term, 1982, pp. 28-29.
65/ Brief on Behalf of Defendants-Appel-
lees ' Stotts v ._City of Memphis, No.
80-1469 (6th Cir.), pp. 13-14.



95

This brief was filed on March 5, 1981.
Sixty-four days later the city submitted 
its first memorandum in opposition to the 
requested preliminary injunction at issue 
here, insisting "the Defendants have 
specifically denied any prior discrimina­
tory conduct" and that "there is no judi­
cial finding of discrimination by the 
Defendants...." 66/

In any event, nothing in section 
706(g), its legislative history or the 
cases decided under Title VII support the 
position petitioners, the United States and 
the AFL-CIO now advocate. EEOC v. American 
Telephone & Telegraph Co., 556 F.2d 167, 
177 (3d Cir. 1977), cert, denied, 438 U.S. 
915 (1978). In view of the extensive
treatment of this issue given by a number

66/ Defendants' Brief in Opposition to 
Plaintiffs' Application for Preliminary 
Injunction, p. 9.



96

of amici in support of respondents, we 
will not re-canvass the legislative history 
or the cases in this brief.

By its terms, section 706(g) applies 
only to judicial orders. It is not 
intended to limit voluntary agreements 
between Title VII plaintiffs and defen­
dants, since it applies only to judicial 
orders and it does not limit concilia­
tion agreements negotiated by the EEOC. It 
is inconceivable that Congress intended to 
prohibit the courts from approving the same 
settlements which were clearly permissible 
prior to the commencement of litigation, 
and which could be entered into without

67/

67/ See, e . g . , Brief of the Lawyers 
Committee for Civil Rights Under Law as 
Amicus Curiae and Brief of the Mexican 
American Legal Defense Fund as Amicus 
Curiae.



97

judicial approval if litigants so desired. 
See United Steelworkers of America v . 
Weber, 443 U.S. 193 (1979).

Petitioners' position was implicitly 
rejected by this Court in Carson v. Ameri­
can Brands , Inc . , 450 U.S. 79 (1981).
In that case the district court, applying 
an approach similar to that advanced by the 
city and union here, refused to approve 
a Title VII consent decree containing 
remedial relief provisions because they 
"did not rest solidly on evidence of 
discrimination and ... were not expressly 
limited to actual victims of discrimina­
tion". 450 U.S. at 87 n. 12; see 446 F. 
Supp. 780, 788-790 (E.D. Va. 1977). In
holding that the district court's action 
constituted an appealable order, the Court 
commented;

Courts judge the fairness of a
proposed compromise by weighing the



- 98

plaintiff’s likelihood of success 
on the merits against the amount 
and form of the relief offered 
in the settlement,.,. They do not 
decide the merits of the case or 
resolve unsettled legal questions.

450 U.S. at 88 n. 14. If, as petitioners
contend, consent decree relief affecting
seniority rights can only be afforded to
proven victims of discrimination, a court
asked to pass on such a decree would be
compelled to ascertain whether plaintiffs
were certain of success and to "decide the
merits of the case" of every minority
employee to whom that relief was to
be provided.

Petitioners' assertion that Title VII 
never authorizes injunctive relief benefit- 
ting non-victims is unfounded. Although 
proven victims of past discrimination are 
frequently the primary direct beneficiaries 
of judicially ordered relief, there 
are circumstances in which limiting relief



99

to that group would clearly frustrate the 
purposes to Title VII. An employer intent 
upon excluding blacks may choose to resort 
to methods of discrimination which make it 
impossible to determine who the victims of 
that violation were. Where an employer 
engages in racially selective word-of-mouth 
recruiting,- for example, there is usually 
no way to determine which blacks would have 
applied and been hired had that not oc­
curred. A similar result can be achieved 
simply by refusing to keep records of the 
names of unsuccessful applicants. If a 
court's inability to identify the victims 
of discrimination automatically precluded 
remedial relief in such cases, racist 
employers would have a foolproof method for 
excluding minorities from some or all 
positions.

In addition, in a number of situations 
the actual victims of discrimination will



100

predictably have no interest in injunctive 
relief which is not awarded until long 
after the violation at issue. Casual 
laborers denied jobs by a construction 
company may still want those positions a 
year after that violation, but college 
teachers denied employment at one school 
are likely to accept positions at other 
institutions possibly hundreds or thousands 
of miles away, and be understandably un­
willing to endure the professional and
personal upheaval involved in returning to

68/
the school which first rejected them. In 
such a case, on petitioners' theory, the 
employer would be guilty of a clear viola­
tion of the law, the white beneficiaries of 
that illegal conduct would be known, and 
yet the federal courts would be powerless

68/ Cf. Ford Motor Co. v. EEOC, 73 L.Ed.2d
721, 737 n .27 (1982).



101

to order remedial injunctive relief.
The purposes of Title VII, moreover, 

extend beyond providing protection for 
minority employees and job applicants. As 
the United States reminded this Court 
several years ago:

Congress ... recognized when it 
extended Title VII to state and local 
governments ... [that] the effects of 
employment discrimination in this 
setting extend well beyond the loss 
of employment opportunities by par­
ticular individuals. Such discrimina­
tion deprives [a public] agency of the 
perspective of minority groups regard­
ing the impact of its programs on 
minorities; it fosters distrust on the 
part of minorities of governmental 
functions carried out by personnel who 
are not representative of the commu­
nity at large ... and it sets a highly 
visible example of discrimination, or 
acquiesence, in the results of past 
discrimination. 69/

69/ Brief of the United States and Equal 
Employment Opportunity Commission, Minnick 
v. Department of Corrections, No. 79-1213, 
p. 20.



102

Where past unlawful discrimination has 
brought about the exclusion of minorities 
from positions in such a public agency, 
Title VII requires that minorities be 
placed in those positions with all reason­
able dispatch, regardless of whether the 
particular employees so excluded can be 
located. See n.62, supra and Appendix E. 
Vindication of the Fourteenth Amendment's 
prohibition against intentional discrimina­
tion, a prohibition not limited by any 
provision comparable to section 703(h) or 
section 706(g), certainly requires no less.

The Amicus AFL-CIO, in an argument not 
advanced by the Firefighters Onion itself, 
asserts that the consent decree would be 
invalid to the extent that it overrides 
provisions of the Memorandum of Understand­
ing between the city and the union. 
(AFL-CIO Brief, p. 2, n.1). The AFL-CIO
acknowledges, however, that its view would



1 0 3

be irrelevant if that Memorandum did not 
create "legally enforceable seniority 
rights." (Id_. ) The reason why the Fire­
fighters have refused to advance this 
argument is not obscure. In 1978, Fire­
fighters Local Union 1784, the petitioner 
in this case, was sued for damages al­
legedly caused by an unlawful firefighters 
strike; the plaintiff grounded his cause of 
action in part on a claim that the strike 
violated the Memorandum of Understanding. 
The union insisted, in its defense, that 
that Memorandum was unenforceable;

As it made clear in the case of 
Weakley C o _ Municipa1 Electric System 
y__Vick. 309 S.W.2d 792 (Tenn, Ct. App. 
West. Sect. 1957), a labor contract or 
collective bargaining agreement be­
tween a municipality and a labor 
union is not enforceable in Tennessee. 
While a municipality and a union can 
enter into a memorandum of understand­
ing or agreement regarding wages, hours 
and working conditions of employees, 
such an agreement is not enforceable in 
the courts. Thus, even if the document 
in question was a contract, plainitff



-  1 0 4  -

has sued on an unenforceable con­
tract .... 70/

This brief was filed by the same attorneys 
who now represent the union in this Court. 
The Tennessee courts have upheld the 
union's contention that its Memorandum of 
Understanding is unenforceable. Fulenwider 
v. Firefighters Association Local Union 
17 8 4 , 649 S.W.2d 268 (Tenn. Sup. C t . ,
1982) .

CONCLUSION

The writs of certiorari should be 
dismissed on the ground that the contro- 
versy regarding the preliminary injunction

70/ Supplemental Memorandum In Support Of 
Local Union Defendant's Motion to Dismiss, 
Fulenwider v. Firefighters Association 
Local Union 1784,No. 84348 T.D., Tenn. 
Circuit Ct., 15th Circuit, p. 1.



1 0 5

is now moot. Should the Court conclude 
that this issue is not moot, the decision 
of the court of appeals should be affirmed.

Respectfully submitted,

THOMAS M. DANIEL 
RICHARD B. FIELDS*

COX & FIELDS 
707 Adams Avenue 
Memphis, Tennessee 
(901) 525-8601

JACK GREENBERG 
0. PETER SHERWOOD 
CLYDE E. MURPHY 
RONALD L. ELLIS 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

BARRY L. GOLDSTEIN 
Suite 904
806 15th Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278

Attorneys for Respondents
* Counsel of Record



APPENDICES



APPENDIX A

EXHIBIT A to The 1980 Consent Decree

Immediate Promotions:
A. Fire Inspector 

Curtis Richmond 
William Carter
John Cooper 
Raymond McGahee 
Fred Jones

B. Deputy Fire Marshall 
Norvell Wallace

C. Driver
Willie Taylor v

D. Fire Prevention Super, in Inspection 
Clarence Howard

E. Metro Arson Squad Inspector 
Grafton Logan

Conditional Promotions:
A. Emergency Unit Lieutenant 

Robert Young may have the next opening.
B. District Chief

Carl W. Stotts when he passes the District 
Chief's Test.

C. Firefighting Captain
Ben Lewis when he passes the Captain's Test.

D. Maintenance Mechanic
Fred Walton may have the next opening when 
available upon receipt of diesel mechanic 
certification.



APPENDIX B

Blacky Hired^Pursuant to Consent Decree

Name Position Status

1 Mary Hopkins
2 Laura Brown
3. Olenda Clifton 
4 Carlene Franklin
5, Tina Hunt
6, Rida Ivery
7, Doris Jackson
8 Rufus Jefferson
9. Carolyn Powell
10. Willie Pruitt
11. Rose Strong
12. Frase Walker
13. Rickie Stokes
14. Denite Matshews
15. Teresa Taylor
16. Sharlene Warren
17. Raymond Gales
18. Gregory Hart

Clerk Typist
Home Fire Safety Rep. Laid Off
Home Fire Safety Rep. Laid Off
Home Fire Safety Rep. Laid OffHome Fire Safety Rep. Laid OffHome Fire Safety Rep. Laid Off
Home Fire Safety Rep. Laid OffHome Fire Safety Rep. Laid OffHome Fire Safety Rep. Laid OffHome Fire Safety Rep. Laid OffHome Fire Safety Rep. Laid OffHome Fire Safety Rep, Laid Off
Personnel Technician Laid OffFire Alarm Operator
Fire Alarm Operator
Fire Alarm Operator
Repairer Laid OffAuto Parts Laid Off



APPENDIX C
Blacks Promoted Pursuant to Consent Decree

Name
P o s i t i o n  
P r o m o t e d  T o S t a t u s

1 . N o r v e l  W a l l a c e  * F i r e  D e p u t y

2 . W i l l i e  T a y l o r
M a r s h a l l

D r i v e r
3 . J o h n n y  H a r r i s o n D r i v e r P r o t e c t e d  b y

4 . C h e s t e r  A n d e r s o n L i e u t e n a n t
i n j u n c t i o n  

P r o t e c t e d  b y

5 . R a y  C o b b L i e u t e n a n t
i n j u n c t i o n  

P r o t e c t e d  b y

6. D o n  H u l b e r t L i e u t e n a n t
i n j  u n c t i o n  

P r o t e c t e d  b y

7 . W i l l i a m  K e g l e r L i e u t e n a n t
i n j u n c t i o n  

P r o t e c t e d  b y

8 . P e r c y  A l e x a n d e r L i e u t e n a n t
i n j u n c t i o n  

P r o t e c t e d  b y

9 . Q u i n c e y  M cK a y L i e u t e n a n t
i n j  u n c t i o n  

P r o t e c t e d  b y
•o
 

1—1 R o s c o e  T a t e L i e u t e n a n t
i n j u n c t i o n  

P r o t e c t e d  b y

1 1 . J o h n  A l s o b r o o k L i e u t e n a n t
i n j u n c t i o n

D e m o t e d
1 2 . W i l l i a m  C a r t e r  * F i r e  I n s p e c t o r
1 3 . J o h n  C o o p e r  * F i r e  I n s p e c t o r

•■ŝ 
1—1 F r e d  J o n e s  * F i r e  I n s p e c t o r P r o t e c t e d  b y

1 5 . G r a f t o n  L o g a n  * F i r e  I n s p e c t o r
i n j u n c t i o n

D e m o t e d
1 6 . R a y m o n d  M c G a h e e  * F i r e  I n s p e c t o r P r o t e c t e d  b y

1 7 . C u r t i s  R i c h m o n d  * F i r e  I n s p e c t o r
i n j u n c t i o n

D e m o t e d

•
00 
1—

1 C l a r e n c e  H o w a r d  * F i r e  P r e v e n t i o n P r o t e c t e d  b y
S u p e r v i s o r i n j u n c t i o n

* P r o m o t i o n  e x p r e s s l y  r e q u i r e d  b y  
E x h i b i t  A  o f  t h e  C o n s e n t  D e c r e e .



APPENDIX D

Least Senior Privates, June _1 98 ! 
—  Employees With Same Hire Date 
in Reverse Alphabetical Order

Name Seniority Date Race

1. Maury Tennyson 2-1-81 W2. Harold Poston 1-24-81 W3. Ken 0. Ellis 12-17-80 w4. Glenn Meadors 12-4-80 w5. Raymond Ray 9-20-80 w6. Ernest E. Hulbert 7-17-80 w7. Charles T. Belk 4-17-80 w8. Larry Kirby 1-18-80 w9. Leo Winfrey 11-5-79 B10. James Winfield 11-5-79 w1 1 . Dell Ray Travis 11-5-79 w12. Terry Thaxton 11-5-79 B13. William Starrett 11-5-79 W14. John D. Payne 11-5-79 W15. James F. Morgan 11-5-79 W16. Harold L. Moore 11-5-79 B17. Timothy B. Mitchell 11-5-79 W18. Cornelius McFadgon 11-5-79 B19. Michael Maxwell * 1 1 - 5 - 7 9 W20. Tommy Mansfield 11-5-79 W21 . Billy L. Mansel 11-5-79 W22. Javier Lerma 11-5-79 W23. Keith Jones 11-5-79 B24. Willie Johnson 11-5-79 B25. Amos Hester 11-5-79 B26. Larry Harris 11-5-79 B27. Larry Harmon 11-5-79 W28. Alonzo Gardner 11-5-79 B29. Gary Bennington 11-5-79 W30. Stanley Darden 11-5-79 W31 . Roy Currie 11-5-79 B32. Frederick Cotton 11-5-79 B



APPENDIX D2

33. Norris Chism 11-5-79 B
34. Franklin Cathley 11-5-79 W
35. Thomas Burk 11-5-79 W
36. William Bryant 11-5-79 W
37. John Brown 11-5-79 B
38. Ronald Braden 11-5-79 B
39. Michael Bonds 11-5-79 B
40. Daryl Anderson 11-5-79 W



APPENDIX E

A verbatim reproduction of pages 18-31 
of Brief for the Plaintiffs-Appellees (EEOC 
and United States) sub mitted to the United 
States Court of Appeals for the Third 
Circuit in Nos. 76-2217, 76-2281 and
7 6-2285 , E <jua_ JL Employment Opportunity
C _American Telephone and
Telegraph Co.

A. The district court's remedial 
authority under Section 706(g) 
and Executive Order 11246 to 
order race and sex conscious 
goals to correct the effects of 
past discrimination is not 
limited by Sections 703(a), (j)
or (h) .

The Congress has given the district 
courts broad remedial authority to "order 
such affirmative relief as may be appro­
priate ... or any other equitable relief as
the court deems appropriate." Section

11/706(g).

14/ Section 706(g), 42 U.S.C. § 2000e-5(g) 
(Supp. II, 1972), is set out in an appendix 
to this brief.



2e

In cases of racial discrimination, the 
"courts has not merely the power but the 
duty to render a decree which will so far 
as possible eliminate the discriminatory 
effects of the past as well as bar like 
discrimination in the future." Louisiana 
v. United States, 380 U.S. 145, 154 (1965). 
That principle is fully applicable to 
employment discrimination cases, and has 
twice been reaffirmed by the Supreme Court 
in construing the district court's author­
ity and duty to order relief under Section 
706(g). Albemarle Paper Co. v. Moodyf 422 
U.S. 405, 418 (1976)j Franks_v. Bowman
Transportation Co.t 424 U.S 747 770
(1976). As the Court noted in Franks:

The provisions of [Section 706(g)] are 
intended to give the courts wide 
discretion exercising that equitable 
power to fashion the most complete 
relief possible.' [424 U S  at 76 4 
quoting from legislative history to



3e

the 1 972 amendments to Title VII,
118 Cong, Rec. 7168 (1972) 1 5/]
Each of the nine appellate courts 

which have confronted the issue has held 
that race conscious relief, including 
numerical goals, is appropriate, and may be 
necessary, under Section 706(g) and/or the 
Executive Order to correct the effects of 
racially discriminatory employment prac­
tices. E .g .t United States v Int erna- 
tiqnalJUn i o n o f ___E l ey a t o r Con s t r u c t o r s , 
Local Union No. 5, 538 F .2d 1012 (3d Cir.
1976); Contractors Association of Eastern 
Pennsylvania v. Secretary of_Labor, 4 4 2
F.2d 159 (3d Cir.), cert._denized, 404
U.S. 854 (1971); Boston Chapter NAACP v.
Beecher, 504 F.2d 1017 (1st Cir. 1974),

15/ Reprinted in Legislative History of 
the Equal Employment Opportunity Act of 
1972, Senate Committee on Labor and Public 
Welfare, Subcommittee on Labor, at 1848 
( 1972) .



4e

cert, denied, 421 U. S. 910 (1975); Asso­
ciated General Contractors of Massachusetts 
v. Altshuler, 490 F. 2d 9 (1st Cir. 1973), 
cert, denied, 416 U.S. 957 (1974); Rios v.
Enterprise Association Steamfitters Local 
638, 501 F.2d 622 (2d Cir. 1974); Patterson 
v. American Tobacco Co., 535 F.2d 257 (4th 
Cir. 1 976); Morrow v. Crisler, 491 F . 2d 
1053 (5th Cir.) (en banc), cert, denied, 
419 U.S. 895 (1974); NAACP and United
States v. Allen, 493 F.2d 614 (5th Cir. 
1974); United States v. Local 212 Interna­
tional Brotherhood of Electrical Workers, 
472 F.2d 634 (6th Cir. 1973); United States
v_._Masonry Contractors Association of
Memph i s , 497 F.2d 871 (6th Cir. 1974); 
Southern Illinois Builders Association v. 
Ogilvie, 471 F.2d 680 (7 th Cir. 1972); 
Crockett v. Green, 534 F.2d 715 (7th Cir. 
1 9 7 6) ; United States v. N.L. Industries,
479 F.2d 354 (8th Cir. 1973); United States



5e

v. Ironworkers Local 86, 443 F. 2d 544 (9th 
Cir. ), cert, denied, 404 U.S. 980 ( 1971 ). 
The broad relief provided in such cases is 
designed to rectify discrimination against 
a class, and is not limited to identified 
victims of past discrimination.

The broad remedial authority of the 
courts under Section 706(g) and the Execu­
tive Order —  and specifically the author­
ity to impose numerical relief -- was 
brought before the Congress in the course 
of the consideration of the 1972 amendments 
to Title VII. Senator Ervin introduced an 
amendment which would have prohibited 
federal agencies and officials from requir­
ing "discrimination in reverse" by employ­
ing "either fixed or variable numbers, 
proportions, percentages, quotas or goals." 
118 Cong. Rec. 1663 (1972) (Leg. History, 
supra, at 1042, 1044). His amendment was
addressed to Title VII and Executive Order



6 e

11246, and was designed to limit the 
authority of the EEOC and the Secretary of 
Labor. Ibid. His amendment was opposed by 
Senator Williams, the floor manager, and by 
the minority floor manager, Senator Javits, 
who relied upon and had printed in the 
Congressional Record two decisions—  this 
Court's decision in Contractors Association 
of Eastern Pennsylvania v. Secretary of 
Labor, supra, and United States v. Iron­
workers Local 86, supra, 118 Cong. Rec.
1665 (1972)(Leg. History, supra, at 1048). 
In opposing the amendment, Senator Javits 
argued that it would not only destroy the 
affirmative action concepts under Executive 
Order 1 1246, but would also "deprive the 
courts of the opportunity to order affirma­
tive action under Title VII of the type 
which they have sustained in order to 
correct a history of unjust and illegal 
discrimination..." 118 Cong. Rec. 1665



7e

(1972) (Leg. History, supra, at 1048). 
Similarly, Senator Williams argued that he 
was

... desperately afraid -- that this 
amendment would strip Title VII of the 
Civil Rights Act of 1964 of all its 
basic fibre. It can be read to 
deprive even the courts of the 
power to remedy clearly proven cases 
of discrimination. [118 Cong. Rec. 
1676 (Leg. History, supra, at 1072)]

Senator Ervin's amendment was defeated 
that day by a vote of 22 to 44. 118 Cong.
Rec. 1676 (Leg. History, supra, at 1074). 
Thus, we have very clear legislaive history 
not only of Congressional ratification 
and app/oproval of the broad remedial 
authority under Title VII and Executive 
Order 11246, but also clear ratification 
and approval of the authority to order 
numerical relief.

In the recent case of United States v. 
International Union of Elevator Construc­
tors, Local Union No. 5, 538 F.2d 1012 (3rd



8 e

Cir. 1976), this Court rejected contentions 
that the imposition of affirmative remedies 
benefiting individuals who may not them­
selves have been victims of the unlawful
d i s c r i m i n a t i o n  w e r e  l i m i t e d  b y  S e c t i o n

16/
703 ( j ) In so doing, the Court noted
the "virtual unanimity in the lower federal 
courts that § 703{j) does not in this 
respect limit the courts' remedial powers." 
538 P. 2d at 1019. It also noted that in 
amending Title VII in 1972 Congress had 
indicated approval of the broad remedial 
authority of the courts, including the 
power to impose numerical remedies. The

16 / Although the Court's analsyis was
directed to Section 703(j), its analysis is 
also dispositive of contentions that the 
relief in this case is barred by Section 
703(a). See also Contractors Association 
of Eastern Pennsylvania v. Secretary of 
labor, supra, 442 F.2d at 173. (Sections 
703(a) and (j), 42 U.S.C. §§ 2000e-2(a) and 
(j), are set out in the appendix to this 
brief.)



9e

Court pointed out that in the section-by-
11/section analysis of the 1972 amendments,

Congress had expressed the view that:
In any area where the new law does not 
address itself, or in any areas 
where a specific contrary intention is 
not indicated, it was assumed that the 
present case law as developed by the 
courts would continue to govern the 
applicability and construction of 
Title VII.

It also referred to the fact that Congress 
had rejected two amendments offered by 
Senator Ervin to forbid the courts from 
using numerical remedies to eliminate the 
effects of past discrimination after 
Senator Javits had cited the opinions in 
United jStates v. Ironworkers Local 86, 
sjjpra, and Contractors Association of 
Eastern Pennsylvania v-_ Secretary of 
Labor, supra. Citing Runyon v McCrary^

17/ 118 Cong, Rec, 7166 (1972) (Leg,
History, supra, at 1844.)



1 Oe

U.S. ___, 96 S.Ct. 2586 (1976), the
Court in Elevator Constructors found this 
"unusually clear evidence that Congress 
approved the pre-1972 federal court inter­
pretation of the scope of Section 706(g) 
remedial powers." 538 F.2d at 1012-13.

IBEW attacks the Court's analysis of 
the legislative history in the Elevator 
Constructors decision. As to one of the 
amendments offered by Senator Ervin, it 
argues that the amendment was primarily 
aimed at restricting the Office of Federal 
Contract Compliance? that in the two 
decisions cited by Senator Javits, the 
courts had found the remedies not to be 
preferential quotas; and that, because it 
cannot be determined why the amendment was 
defeated, the defeat cannot be read as a 
congressional approval of those decisions. 
Of the second amendment, IBEW contends that 
it had only been intended to extend the



preferential treatment prohibition of 
Section 703(j) to the OFCC. However, the 
debate over the former amendment made it 
clear that what was deemed to be at issue 
was both the requiring of affirmative 
action under Executive Order 11246 and the 
ordering of quota remedies by courts to 
overcome the effects of past discrimina­
tion. (See Leg. History, supra, 1046, 

18/
1048, 1072).

- 1 1 e -

18/ In arguing against the adoption of the 
Ervin amendment, Senator Javits stated, 118 
Cong. Rec. 1665 (Leg. History, supra, at 
1048) :

I would also like to cite in that 
regard the opinion in the United 
States v. Ironworkers Local No. 86, 
443 F„2d 544, decided in the Ninth 
Circuit Court of Appeals as recently 
as May of 1971, in which the court 
held, in a Title VII "pattern or 
practice" case, that there was an 
affirmative duty for minority recruit­
ment where it was shown that there was 
past discrimination which now required 
correction, and that the court could 
order that correction affirmatively



12e

IBEW'S contention that the value of 
the legislative history is diminished be­
cause in the two cases called to Congress' 
attention the remedies were found not to 
constitute preferential quotas (IBEW brief 
pp. 42-43) is unpersuasive. Any such 
statements in those decisions merely con-

28/ continued
without violating section 703(j) 
related to preferential treatment of 
individuals of any group, and so 
forth, where there had been il­
legality. The court would not allow a 
respondent to profit from his own 
illegality under cover of section 
703(j).

Now, Mr. president, I am told, 
and I believe the information to be 
reliable, that under the decision made 
last week by Judge Bonsai in New 
York, in the Steamfitters case, an 
affirmative order was actually entered 
requiring a union local to take in a 
given number of minority-group ap­
prentices .

What this amendment seeks to do 
is to undo the Philadelphia plan and 
those court decisions. Incidentally, 
I take great pride in the fact that 
when the legality of the Philadelphia



1 3 e

stituted the legal conclusion that the 
relief was lawful. See, e g ., the aspects 
of the relief at issue in the Ironworkers 
case in the district court opinion, 315

18/ continued
plan was argued here, and we had an 
opinion of the Attorney General which 
held it lawful pitted against an 
opinion of the Comptroller General's 
Office which held it unlawful. I 
think I was the principal Senator 
who sustained the doctrine of legal­
ity. And I am very grateful, natu­
rally, that the courts took that 
view.

So, there I believe that the 
amendment does two things, both of 
which should be equally rejected.

First, it would undercut the 
whole concept of affirmative action 
as developed under Executive Order 
11246 and thus preclude Philadelphia 
type plans.

Second the amendment, in addi­
tion to dismantling the Executive 
o r d er p ro g ram, wouId deprive the 
courts of the opportunity to order 
affirmative action under Title VII of 
the type which they have sustained in 
order to correct a history of urrjust 
and illegal discriminationin employ­
ment and thereby futher dismantle the
effect to correct these_injustices.
(emphasis supplied).



14e

F. Supp. 1212, 1247 (W.D. Wash. 1970). The 
legislative history makes clear that 
congress was not misled as to what was in 
fact at issue.

It is true, as IBEW notes, that it 
can never be completely determined why 
a particular amendment was defeated. 
However, that does not militate against a 
rule of statutory construction whereby the 
most logical inference is drawn, especially 
where the vote is overwhelming. The 
overwhelming rejection of the Ervin amend­
ment was properly read by the Court in 
Elevator Constructors as a clear indication
that Congress did not intend Section 703(a)11/
or (j) to be a bar to such relief.

19/ It is also noteworthy that Congress in 
1972 in fact broadened the remedial lan­
guage of Section 706(g) to include the 
words "or any other equitable relief as the 
court deems appropriate." In light of that 
fact, there is no merit in IBEW's attempt 
to rely on H. K. Porter v. NLRB, 397 U.S.



1 5 e

19/ continued
99 (1970) (IBEW brief, pp. 35-36), which
held that the Board could not, even for 
remedial purposes, order the parties to 
reach agreement since Congress had never 
given the Board the authority to order 
employers and unions to agree. Here the 
district courts, subject only to consti­
tutional limitations, have the broadest 
possible power to fashion relief.

IBEW (brief, pp. 31-32) places re­
liance on the last sentence of Section 
706(g), which reads:

No order of the courts shall 
require the admission or rein­
statement of an individual as a 
member of a union, or the hiring, 
reinstatement, or promotion of an 
individual as an employee, or 
the payment to him of any back 
pay, if such individual w*a s 
refused admission, suspended, 
or expelled., or was refused 
employment or advancement or was 
suspended or dischaged for any 
reason other than discrimination 
on account of race, color, 
religion, sex, or national origin 
or in violation of section 704(a).

As noted above with respect to Sections 
703(a) and (j), this Court and eight other 
courts of appeals have found that language 
not to be a bar to affirmative numerical 
remedies.



16e

The appellants efforts to bring into 
operation the language of Sections 703(a) 
or (j) to bar the relief in this case 
because here, unlike the case of hiring 
goals, the expectation of incumbents are 
affected are without merit. As discussed 
infra, pp. 34-35, the Elevator Constructors 
case did involve relief affecting the 
interests of incumbents. Morover, it is 
simply impossible to read the language of 
those sections to permit relief in the 
hiring case while barring it in the case of 
promotions.

CWA and IBEW also contend that the 
override aspect of the decree and supple­
mental order is barred by Section 703(h) of 

20/
Title VII. Both find support in Franks

20/ Section 703(h), 42 U.S.C. § 2000e-
2(h), is set out in the appendix to this 
brief.



M e

Bowman Transportation Co,; 424 U.S* 747
(1976), Rather than supporting their
position however^ the Franks decision
disposes of any contention that Section
703(h); restricts the relief available to
correct prior discriminatory practices, In
holding that Section 703(h) could not bar
the grant of retroactive seniority to
remedy discrimination the Court in Franks
reasoned (424 U.S. at 758-59);

On its face, § 703(h) appears to 
be only a definitional provision,; 
as with the other provisions of 
§ 703 subsection (h) delineates 
which employment practices are 
illegal and thereby prohibited 
and which are not. Section 
703(h) certainly does not ex­
pressly purport to qualify or 
proscribe relief otherwise 
appropriate under the remedial 
provisions of Title VII, §7Q6(g), 
42 U.S.C. § 2000e-5(g), in
circumstances where an illegal 
discriminatory act or practice is 
found. Further, the legislative 
history of § 703(h) plainly
negates its reading as limiting or



1 8e

qualifying the relief authorized 
under §706(g). 21/

21/ After examining the legislative 
history, the Court concluded (id,, at 
761-762) .

Accordingly, whatever the exact 
meaning and scope of § 703(h) in 
light of its unusual legislative 
history and the absence of 
the usual legislative materials, 
see Vaas [Title VII. Legisla­
tive History, 7 B.C. Ind. & Comm, 
L. Rev. 431 (1 966)] at 457-458..
it is apparent that the thrust of 
the section is directed towad 
defining what is and what is 
not an illegal discriminatory 
practice in instances in which 
the post-Act operation of a 
seniority system is challenged 
as perpetuating the effects of 
discrimination occurring prior to 
the effective date of the Act. 
There is no indication in the 
legislative materials that 
§703(h) was intended to modify or 
restrict relief otherwise appro­
priate once an illegal discrimi­
natory practice occuring after 
the effective date of the Act 
is proved--as in the instant 
case, a discriminatory refusal to 
hire.

(footnote omitted)



1 9 e

This Court so read the Franks decision in
its Elevator Constructors decision, supra,
stating (538 F.2d at 1019):

Local 5 contends, however, that 
the enforcement provisions in 
§ 706(g) are in effect limited by 
the unlawful employment practices 
prohibitions in §§703(h) and (j). 
The short answer to that conten­
tion is that § 703 defines viola­
tions/ not remedies. The section 
binds employers and labor organi­
zations. It binds the court to 
the extend that it curtails the 
court's power to find a viola­
tion, but § 703 is simply inap­
plicable to the relief which may 
be afforded once a violation has 
been found. Thus a court could 
not predicate a finding of viola­
tion upon the existence of a 
bona fide seniority system such 
as § 703(h) describes, or upon
the mere failure to institute an 
affirmative action program of the 
kind to which § 70 3(j) refers. 
But the court's remedial powers 
are not limited by these provi­
sions. That is made abundantly 
clear by the holding in Franks v. 
Bowman Transportation Co. supra, 
that artificial seniority may, 
pursuant to § 706(g), be awarded 
as a remedy for past discrimina­
tion .

As discussed infra, pp. 33-34, this
decision was made in the context of relief



20e

overriding the expectations of incumbents 
in favor of minorities not identified as 
victims of the prior discrimination. Thus 
this Court must have read the Franks ruling 
with respect to the reach of Section 
703(h) as not limited to relief to identi- 
able victims. This was a proper reading of 
that decision. The Court held that Section 
703(h) merely defined violations and was 
not intended to permit seniority systems to 
stand as a bar to appropriate Title VII 
relief. There may be questions as to 
whether relief to persons not individually 
identified as victims is appropriate but 
there is simply no basis in the statute for 
reading 703(h) as a limitation on the 
authority to grant relief if otherwise 
appropriate.

CWA and IBEW also seek to rely on this 
Court's original decision in Jersey Central 
Power & Light Co. v. Local 327, IBEW, 508



2 1 e

F.2d 687 (3d Cir. 1975), and the subsequent 
per curiam decision remanding the cause to
the district c o u r t , ___ F . 2 d ___ , 13
FEP Cases 762 (3d Cir. 1976), after the 
Supreme Court had sent the case back for
reconsideration in light of Franks, ___ U.S.
___r 96 S.Ct. 2196 (CWA brief pp. 21-32,
IBEW brief, pp. 51-53). As this Court
pointed out in Elevator constructors, 
supra, 538 F.2d at 1020, the Jersey Central 
decision "is not in point because it did 
not deal with the scope of judicial remedy 
afforded in 706(g) for a § 703 violation." 
The original opinion, dealing only with the 
question of whether the use of plantwide 
seniority to determine layoff status 
violates public policy (as expressed in 
Title VII), held that Section 703(h) 
precluded a finding of a Title VII viola­
tion even where such layoffs perpetuated 
past discrimination. 508 F.2d at 704-711.



22e

The Court's opinion on remand merely holds 
that in light of Franks, layoffs of identi­
fied individuals who were shown to have 
been the victims of hiring discrimination 
would be a violation of Title VII, notwith­
standing the provisions of Section 703(h).

It is true that the Jersey Central 
opinion on remand does appear to draw a 
distinction between identified and non- 
identified victims of previous discrimina­
tion. In the context of the layoff situa­
tion before the Court in that case and in 
view of the emphasis in the original 
opinion on the "intention to discriminate" 
as the sole exception to the bonafides of 
a company service seniority system (508 
F.2d 711), that distinction may have 
validity. Where persons have lower senior­
ity because of a discriminatory refusal to 
hire at an earlier date, the reduced 
seniority is plainly the result of an



23e

intention to discriminate; where an indi­
vidual was not a victim of hiring discrimi­
nation the lower seniority is not a result
of an intention to discriminate as to that 

22/
person. Whatever the merit of drawing
such a distinction in the Jersey Central 
context, it is not inconsistent with the 
Court's reading of Franks in Elevator 
Constructors. Section 703(h) does not 
apply at all with respect to the remedy 
for past class discrimination which has 
been carried into a seniority system. 
There is thus no basis in Section 703(h) 
for distinguishing between identifiable 
victims and other members of the previously 
disadvantaged group if group relief is 
otherwise appropriate.

22/ Such an interpretation of 703(h) is 
consistent with opinions of the Fourth 
Circuit. See Patterson v. American Tobacco 
Co., 535 F2.d 257, 266 (4th Cir. 197677
Russell v. American Tobacco Co., 528 F.2d 
357, 363 (4th'^rFr7975'n



24e

In sum, all of appellants' statutory- 
objections to the authority of the district 
court to order the relief at issue in this 
case are foreclosed by the legislative 
history of the 1972 Act and the settled 
law of this Circuit.



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