Firefighters Local Union No. 1784 v. Stotts Brief Amicus Curiae in Support of Petitioners

    Nos. 82-206, 82 229

In %  Bnprmt (Urntrt of %  HHmUb States
October Term, 1983

F irefighters Local Union No. 1784, petitioner

v.

Carl W. Stotts, et al.

Memphis F ire 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 THE,: UNITED STATES AS AMICUS CURIAE 
IN SUPPORT OF PETITIONERS

NAACP

Rex E. Che
.,„Sg}icitor General 

tNu'E Reynolds
■jRARY Assistant Attorney General

’ 99 : HUDSON STREET Charles Justin Cooper 
NEW YORK N, Y. 10013P eVwby Assistant Attorney General

Carter G. Phillips 
Assistant to the Solicitor General

Brian K. Landsberg 
Dennis J. Dimsey 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

This brief will address the following question:
Whether the district court exceeded its authority by 

prohibiting the City of Memphis from laying off and 
demoting personnel in its fire department on the basis 
of accumulated seniority in order to maintain the per­
centage of minority employees in the department who 
had been hired and promoted pursuant to a consent de­
cree entered into as a settlement of suits charging 
discrimination in the department’s hiring and promotion 
practices.

(I)



TABLE OF CONTENTS

Interest of the United States................ ......-...................... 1

Statement ..... ............... ............ .............................................. 2
Summary of Argument ............... -................. ...................... 8

Argument:
The district court’s order exceeded its remedial
authority under Section 706(g) of Title V I I ........ 11
A. The order o f the district court disregards the 

important statutory policy embodied in Section 
703(h), 42 U.S.C. 2000e-2(h), to protect sen­
iority systems, ignores the legitimate interests 
of incumbent employees in those systems and 
grants unwarranted protection to non-victims
of discrimination.......................  13

B. The limitation on the court’s remedial author­
ity contained in the last sentence of Section 
706(g) confirms that Congress did not intend 
to grant constructive seniority in the circum­
stances of this case........................ .......................-  23

C. The courts below should have avoided creating 
a substantial constitutional question by refrain­
ing from issuing a race conscious seniority or­
der that was not clearly intended by Congress
in Title VII ..............................................................  29

Conclusion ................................   31

TABLE OF AUTHORITIES
Cases:

Aetna Life Insurance Co. V. Haworth, 300 U.S.
227 ......... ............. -.......-............ -............................... -  8

Airline Stewards & Stewardesses Association V. 
American Airlines, 573 F.2d 960, cert, denied,
439 U.S. 876 _______ _______ _________________ - 18, 19

Albemarle Paper Co. v. Moody, 422 U.S. 405 ____15, 24,
29,30

Alexander v. Gardner-Denver Co., 415 U.S. 3 6 ___ 12

Page

(III)



American Tobacco Co. v. Patterson, 456 U.S. 63.....  9, 13,
14, 25

Arizona Governing Committee V. Norris, No. 82,-
52 (July 6, 1983) ______ .________ ______ ______  16,18

Boston Firefighters Union V. Boston Chapter,
NAACP, No. 82-185 (May 16, 1983) ....................  8

Buckley V. Valeo, 424 U.S, 1 ...................... ..............  29
California Brewers Association V. Bryant, 444 U.S.

598 ...........................................................................13, 14-15
Carson V. American Brands, Inc., 450 U.S. 7 9 .....  12
Connecticut V. Teal, 457 U.S. 440 ...._.................... 9,16
County of Los Angeles V. Davis, 440 U.S. 62:5.......  8
Delaware & II. Ry. V. United Transportation Union,

450 F.2d 603, cert, denied, 403 U.S. 911 .............. . 28
Ford Motor Co. V. EEOC, No. 81-300 (June 28,

1982) .......................... .................... 8,13,18,19, 21, 24, 30
Franks V. Bowman Transportation Co., 424 U.S.

747 ........................................... ........9,15, 16, 24, 28, 29, 30
Fullilove v. Klutznick, 448 U.S. 448 .............. .......... . 30
General Building Contractors Association v. Penn­

sylvania, No. 81-280 (June 29, 1982) ................  11-12
Griggs V. Duke Power Co., 401 U.S. 424 ................ . 11, 17
H.K. Porter Co. V. NLRB, 397 U.S. 99 ....................  13
Humphrey V. Moore, 375 U.S. 335 ......................... . 8, 13
Local 189, United Papermakers and Paperworkers

V. United States, 416 F.2d 980 ..................... ....... 18
Los Angeles Department of Water & Power V.

Manhart, 435 U.S. 702 ......................................... 16
Minnick V. California Department of Corrections,

452 U.S. 105 ................................. ............. .............. 31
Moragne V. States Marine Lines, Inc., 398 U.S.

375 ....... ............................................. ......................... 13
Morton V. Mancari, 417 U.S. 535 ...... ........................ 31
NLRB V. Catholic Bishop, 440 U.S. 490 ......... 10, 31
Occidental Life Insurance Co. v. EEOC, 432 U.S.

355 _____ ____ ___ ________ ___ ___ ________ ___ _ 12
O’Connor v. Board of Education, 645 F.2d 578,

cert, denied, 454 U.S. 1084 ____ _____ ________ __  23
Patterson v. American Tobacco Co., 535 F.2d 257..9-10,18
Powell V. McCormack, 395 U.S. 488 _____________  8
Punnett V. Carter, 621 F.2d 578 ............................  23

IV
Cases— Continued Page



Regents v. Bakke, 488 U.S. 265 ....1...........................  30
System Federation V. Wright, 364 U.S. 642 __ ..... 12
Teamsters V. United States, 431 U.S. 324 ............passim
Trans World Airlines, Inc. V. Hardison, 432 U.S.

63 ................................................................................  9, 13
United A ir Lines, Inc. V. Evans, 431 U.S. 553....... 14
United States V. Int’l Union of Elevator Construc­

tors, 538 F.2d 1012  .................... .......................... 28
United States V. Security Industrial Bank, No. 81-

184 (Nov. 30, 1982) ................................................. 10, 31
United States V. W. T. Grant Co., 345 U.S. 629 .... 8
United Steelworkers V. Weber, 443 U.S. 193 .......  22
Virginia, Ex parte, 100 U.S. 339 ............... ....... . 29
Washington v. Davis, 426 U.S. 229 .................... . 11
Withrow V. Larkin, 421 U.S. 35 .......................... ;.... 23
W. R. Grace & Co. V. Local 759, No. 81-1314 (May 

31, 1983) ............................... ....................... ......... . 12,22

Constitution and Statutes:
United States Constitution :

Amend. V (Due Process Clause) __ __________ 10, 29
Amend. X I V ..... ........... ........ ................................ 29

§ 5 .................................................... ...............  10, 30
Civil Rights Act of 1964, Title VII, 42 U.S.C. (&

Supp. V) 2000e et seq.............................................  1, 8
Section 703, 42 U.S.C. 2000e-2..........................  27
Section 703 (a ) , 42 U.S.C. 2000e-2 (a) ..............  15
Section 703(h), 42 U.S.C. 2000e-2(h) .....9,13, 14, 18
Section 706(f) (1 ), 42 U.S.C. 2000e-5(f) (1) .. 1
Section 706(g), 42 U.S.C. 2000e-5(g) .......10, 12, 13,

17, 18, 19, 23-29
42 U.S.C. 1981 ................................ ............ ................  2, 11
42 U.S.C. 1983 ................ .............. .............. ......... ....... 2, 11

Miscellaneous:
Comment, Preferential Relief Under Title VII, 65

Va. L. Rev. 729 (1979) ................. .............. ...........  25
110 Cong. Rec. (1964) :

pp. 486-487 .................................................... ....... 14
pp. 486-489 .... ................ .............. ........................  9

V
Cases— Continued Page



VI

Miscellaneous— Continued Page

p. 1518 ..........................................  25
p. 1540 .................................      25
p. 1600 .................... ............... ................................  25
p. 2567 ..................... ............. .................................  25
p. 5423 ...... .................................. ............ ............ -  25
p. 6549 .............................. ..................... ............. . 26
p. 6563 .......................................... ............ .......................... .............  26
p. 6566 ........................... ........................................  25
p. 7207 ..................................................... ..............  14,26
pp. 7212-7215 ..................     14
p. 7214 .............. ;.™„............. .................... ....... 26
pp. 7216-7217 ........................................................  14
p. 12723 - .................. ................ ...........................  14
pp. 12818-12819 ................................ ........... ........  14
p. 14465 __________ ______ ___ ______ ______:... 26

118 Cong. Rec. (1972):
p. 1662 ........................................... ......... .......... 28
pp. 1663-1664 .....................    28
p. 4917 ...........................!................................. . 28
pp. 4917-4918 ...... ................. ........... ............ ....... 28
p. 7168 ...................................... ........... ......... ;........ 15,28
p. 7565 ...............................     28

H.R. 1746, 92d Cong., 1st Sess. (1972) .......... ......... 28
H.R. Conf. Rep. No. 92-899, 92d Cong., 2d Sess.

(1972) _______       28
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963) ... 14
S. 2515, 92d Cong., 2d Sess. (1972) ................... . 28
S. Conf. Rep. No. 92-681, 92d Cong., 2d Sess.

(1972) .......       28
Subcomm. on Labor o f the Senate Comm, on Labor 

and Public Welfare, 92d Cong., 2d Sess., Legis­
lative History of the Equal Employment Oppor­
tunity Act of 1972 (Comm. Print 1972) ______ 18, 27,

28, 29



In %  (tmxxt nf %  Itttteft States
October Term, 1983

No. 82-206
F irefighters Local Union No. 1784, petitioner

v.
Carl W. Stotts, et a l .

No. 82-229
Memphis F ire 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 THE UNITED STATES AS AMICUS CURIAE 
IN SUPPORT OF PETITIONERS

INTEREST OF THE UNITED STATES
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

(& Supp. V) 2000e et seq., prohibits, inter alia, racial 
discrimination in employment. The Attorney General is 
responsible for the enforcement of Title VII in eases such 
as this one where the employer is a government, govern­
mental agency, or political subdivision. 42 U.S.C. 2000e-5 
(f) (1). This Court’s resolution of the issue presented in 
this case, viz., the propriety of a preliminary injunction 
requiring that layoffs and demotions of city employees 
be made not on the basis of a bona fide seniority system,

( 1 )



2

but rather pursuant to a modified seniority system de­
signed to assure that recently hired and promoted mi­
nority employees retain their positions, will have a sub­
stantial effect on the Attorney General’s enforcement 
responsibilities under Title VII.

STATEMENT

1. In February 1977, Carl Stotts, a black Captain in 
the Memphis Fire Department, filed suit in the United 
States District Court for the Western District of Ten­
nessee against the City of Memphis, the City’s Director 
of Personnel, the Memphis Fire Department, and the 
Department’s Director of Fire Services. The complaint, 
styled as a class action, alleged that the defendants had 
engaged in racially discriminatory hiring and promotion 
practices, in violation of Title VII of the 1964 Civil 
Rights Act and 42 U.S.C. 1981 and 1983 (Pet. App. 
A 4).1 2

In June 1979, Fred Jones, a black Private in the Fire 
Department, filed an individual action in the same dis­
trict court under Title VII and 42 U.S.C. 1983 against 
the same defendants. Jones alleged in his complaint that 
he had been denied a promotion to the rank of Fire In­
spector because of his race. In September 1979, the dis­
trict court ordered the cases consolidated (Pet. App. 
A5) ?

Subsequently, in April 1980, all of the parties to the 
consolidated cases agreed to a settlement, which was ap­
proved by the district court. In the decree, the City did 
not admit to having violated any laws; nevertheless it 
committed itself to a long-term goal of increasing mi­
nority representation in each job classification in the De-

1 “ Pet, App.” refers to the appendix to the petition for a writ of 
certiorari in No. 82-206.

2 Neither of the complaints raised any issue with respect to lay­
offs or demotions within the Department.



3
partment to levels approximating the level of minority 
representation in the local labor force.®

The decree also established a 50% interim hiring goal 
and 20% interim promotion goal for qualified minori­
ties.* 4 Except for a general commitment by the City not 
to discriminate on the basis of race “with respect to com­
pensation, terms and conditions or privileges of employ­
ment” (id. at A62), the decree was silent as to the 
manner in which any layoffs or demotions in the De­
partment were to be conducted.

2. On May 4, 1981, the City announced that for the 
first time in its history projected budget deficits required 
personnel reductions in all major departments. The re­
ductions were to be made on the basis of city-wide sen­
iority (Pet. App. A8). Although the City had no formal

8 The City had committed itself to the same long-term goal in a 
consent decree entered into with the United States in 1974 in 
litigation involving allegations of employment discrimination in 
violation of Title VII in various city agencies, including the; Mem­
phis Fire Department. The City did not admit any misconduct 
in that decree, but did acknowledge that its employment practices 
gave rise to> an inference! of race and sex discrimination (Pet. App. 
A3).

According to the evidence presented at the preliminary injunc­
tion hearing held in 1980, 56% of the persons newly hired by the 
Department since the entry of the 1974 consent decree have been 
black (46% including rehires), and 16-17% of the promotions in 
the Department since that time have gone to' blacks (J.A. 48, 
57). In 1974, blacks constituted about 32% of the labor force in 
Shelby County, Tennessee, and approximately 3-4% of the Fire 
Department (J.A. 47). By 1980, blacks constituted approximately 
35% of the labor force in Shelby County (Pet. App. A22 & n.14), 
and about 10% of the employees in the Fire Department (id. at 
A9 n.5).

4 The decree provided that “ [gjoals established herein are to- be 
interpreted as objectives which require reasonable, good faith efforts 
on the part of the City, and not as rigid quotas” (Pet. App. A64). 
It explained further that “ [njothing in this * * * Decree should be 
construed in such a way to require the. promotion of the un­
qualified or the promotion of the less-qualified over the more 
qualified as determined by standards shown to be valid and non- 
discriminatory * * *” (id. at A65) .



collective bargaining agreements with any of the unions 
representing its employees, the City had entered into 
“ memoranda of understanding” with the unions, includ­
ing the petitioner union in this case (J.A. 116-119). 
These memoranda provided generally for terms and con­
ditions of employment with the City; the memorandum 
covering the Fire Department provided that “ [i]n the 
event it becomes necessary to reduce the Fire Division, sen­
iority * * * shall govern layoffs and recalls” (J.A. 119). 
The last-hired, first-fired policy adopted by the City for 
conducting its proposed layoffs was chosen because of the 
memoranda of understanding (id. at 49 ).

On the day the layoff program was announced, the 
district court granted respondents’ application for a 
temporary restraining order prohibiting the City from 
laying off or demoting® any minority employee in the 
Fire Department (J.A. 23). Petitioner Firefighters Local 
Union No. 1784 was then permitted to intervene with the 
consent of the parties (Pet. App. A 8 ).

On May 8, 1981, the court held a hearing on respond­
ents’ motion for a preliminary injunction. In order to 
stay within its budget, the Fire Department proposed to 
eliminate approximately 55 positions in which there were 
current employees (J.A. 51). It estimated that the lay­
off process would result in a reduction in the percentage 
of black employees in the Fire Department from ap­
proximately 11% to 10% (J.A. 54).

Of the 55 positions to be eliminated, most were in the 
firefighting bureau in the Department (J.A. 52-53, 73, 
96-97). The City anticipated that the temporary demo­
tions would result in the percentage of black Lieutenants 
in the Department being reduced from 12.1% to 6.3%;5 * * 8

5 Under the layoff program, Fire Department employees in ranks 
above Private who were scheduled to be: laid off were afforded the 
option, if they were qualified to do sb , o f  accepting a demotion, 
thereby “bumping” a junior employee in the lower rank (J.A. 38- 
39,64-65).

« Before the scheduled demotions, 29 of the Department’s 240
Lieutenants were black; after the demotions, 14 of 224 Lieutenants
would have been black (Pet. App. A75; J.A. 21).

4



5
and that of black drivers from 4.8% to 4.2% 1 * * * * * 7 (J.A. 96- 
97; Pet. App. A l l  n.5). In the fire fighting bureau, an 
additional 16 or 17 Private positions were to be elim­
inated, but the record does not reflect the race of the 
persons occupying those positions (J.A. 67),

The City estimated that, as a result of layoffs, 52 per­
sons in the Fire Department would be furloughed, of 
whom 32 (or 61.4%) would be white and 20 (or 38.6%) 
black (J.A. 65-72). The Mayor of the City testified that 
he anticipated that attrition would result in restoring de­
moted or furloughed employees to their former positions 
within six months to two years (J.A. 39).

3. On May 18, 1981, the district court entered an 
order granting a preliminary injunction against the 
City’s proposed layoffs (Pet. App. A77-A79). The court 
found that the 1974 and 1980 consent decrees did not ad­
dress layoffs or demotions, and that memoranda of un­
derstanding between the City and the petitioner union 
specified that layoffs in the Fire Department were to be 
made on the basis of city-wide seniority {id. at A77- 
A78).8 9 The court further found that the City’s layoff 
plan was not adopted with the purpose or intent to dis­
criminate on the basis of race, but that the effect of 
these layoffs and reductions in rank is “ discriminatory” 
{id. at A78).s Based on this finding, the court concluded 
that the layoff program “ is not a bona fide seniority 
system” {ibid.}.

1 Before the demotions, 15 of the Department's 311 Drivers were
black; after the demotions, 13 o f 299 Drivers would have been black
(Pet. App. A75; J.A. 21, 96-97). Although 8 black Drivers were to
be demoted to Private, 6 black Lieutenants were to be demoted to
Driver (J.A. 96). Thus the number o f black Drivers would have
been reduced by only two as a result of the planned demotions.

s The court characterized the legal effect of the memoranda under
Tennessee law as “uncertain” (Pet. App. A78).

9 The district court made no findings concerning the statistical 
impact of the City’s layoff program upon minorities either in the 
Department generally or at any of the various ranks in the De­
partment.



6

The district court ordered “ the defendants not [to] 
apply the seniority policy proposed insofar as it will de­
crease the percentage of black lieutenants, drivers, in­
spectors and privates that are presently employed in the 
Memphis Fire Department” (ibid,.). The court later ex­
panded its injunction to include the positions of Fire 
Alarm Operator I, Fire Prevention Supervisor and Clerk 
Typist (id. at A12).

4. The court of appeals affirmed (Pet. App. A1-A51). 
The court of appeals agreed with the district court that 
the City’s layoff plan would have a disproportionate ad­
verse effect upon minorities in the Department (id. at 
A8). In light of the district court’s unchallenged finding 
that the City’s layoff policy was not adopted with a 
racially discriminatory purpose, however, the court of 
appeals set aside the lower court’s ruling that the layoff 
program was not a bona fide seniority system (id. at 
A l l  n.6, A 4 1 ).10

The court defined the principal issue on appeal as 
“whether the district court erred in modifying the 1980 
Decree to prevent minority employment from being 
affected disproportionately by unanticipated layoffs” (id. 
at A 12). In deciding that issue the court of appeals first 
considered whether the 1980 Decree itself was reason­
able. It found that the temporary hiring and promotion 
goals were reasonable and did not unduly abridge the in­
terests of incumbent employees, and therefore were con­
stitutional. Furthermore, the majority held that the dis­
trict court had conducted an adequate hearing before 
approving the consent decree (Pet. App. A14-A23).

The court next considered whether modification of the 
consent decree was proper under general contract princi­
ples. Under this theory the court held that the modifica­
tion was permissible because the “ City contracted” to pro­
vide “a substantial increase in the number of minorities

10 The court found it unnecessary to resolve the question whether 
the memorandum of understanding between the City and the Union 
was enforceable under Tennessee law (Pet. App. A38 n.20).



7

in supervisory positions” (Pet. App. A32) and the layoffs 
would be a breach of the contract. The district court’s 
modification of the decree merely relieved the City of the 
full burden that compliance with its contract would have 
caused {id. at A34).

Alternatively, the court of appeals held that the district 
court could modify the decree to adapt to an unforesee­
able change in circumstances. The court upheld the dis­
trict court’s general findings that the City’s economic 
crisis was unanticipated and that the layoffs would undo 
much of the effect of the affirmative relief in the 1980 
decree (Pet. App. A57).

Finally, the court considered the effect of seniority 
rights on the authority of the district court to protect 
minorities from layoffs. The court held that a consent 
decree remedying violations of federal law can modify 
collective bargaining agreements, including their seniority 
provisions (Pet. App. A38-A45).

Judge Martin concurred in part and dissented in part 
(Pet. App. A46-A51). He agreed generally with the 
majority that the district court did not abuse its discre­
tion in granting a preliminary injunction; however, he 
disagreed with virtually every specific holding of the ma­
jority. He disagreed that the consent decree read as a 
contract could be construed to require modification of the 
City’s seniority system {id. at A46) ; he rejected the hold­
ing that the district court had authority to abrogate the 
union’s contractual and statutory rights {id. at A48) ; and 
he dissented from the majority’s approval of the under­
lying consent decree and rejection of the union’s alterna­
tive proposals on the ground that those issues were not 
properly before the court {id. at A49-A50). Finally, he 
dissented from the “ sua sponte conclusion [of the ma­
jority] that the decree is ‘constitutional.’ ”  {id. at A50).11

11 According to respondents’ suggestion of mootness and peti­
tioners’ joint response thereto, all of the firefighters who were laid



8

SUMMARY OF ARGUMENT
1. This Court has repeatedly held that in exercising 

the equitable authority granted in Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq., 
courts are limited by the general policies and overall ob­
jectives of the Act. See, e.g., Ford Motor Go. v. EEOC, 
No. 81-300 (June 28, 1982), slip op. 7-8. One policy of 
“ overriding importance” in labor law generally (Hum­
phrey v. Moore, 375 U.S. 335, 346 (1946)), and of 
special significance under Title VII, is the preservation 
of seniority systems and the protection of the rights they

off or demoted have: now been restored to their former positions. 
The reinstatement of the employees, however, does not appear to 
moot the case.

A case is moot if (1) it can be said with assurance that there 
is no reasonable expectation that the enjoined conduct will recur 
and (2) interim events have completely and irrevocably eradicated 
the effects o f the injunction. County of Los Angeles V. Davis, 440 
U.S. 625, 631 (1979). Neither condition appears to be satisfied here. 
The City asserts in its: response to the suggestion of mootness (Jt. 
Opp. to' Suggestion of Mootness 5) that it “cannot provide assur­
ances that further layoffs for fiscal reasons will not be necessitated 
during the effective period of the consent decree in this matter.’’ Un­
like Boston Firefighters Union V. Boston Chapter, NAACP, No. 82- 
185 (May 16, 1983), this case does not involve a state statute: pro­
tecting those who were laid off or demoted from future reductions 
in force. Thus, it cannot be said with any assurance that the con­
troversy giving rise to this litigation will not recur. Nor can it be 
said that the reinstatements have completely eradicated the effects 
of the layoffs and demotions. According to petitioners, those laid 
off lost pay and seniority, and, in some instances, the opportunity 
to take promotional exams (Jt. Opp. to Suggestion of Mootnass 5-6 
and n .l).

In these circumstances, respondents do not appear to have satis­
fied their “heavy” burden ( United States V. W.T. Grant Co., 345 
U.S. 629, 632-633 (1953)) of showing that “the issues presented 
are no' longer ‘live’ or the parties lack a legally cognizable interest 
in the outcome.” Poivell V. McCormack, 395 U.S. 486, 496 (1969). 
Rather, the controversy in this case still appears to' be “ definite 
and concrete, touching the legal relations of parties having adverse 
legal interests.” Aetna Life Insurance Co. V. Haworth, 300 U.S. 
227, 240-241 (1937).



9

confer. Trans World Airlines, Inc. V. Hardison, 432 U.S. 
63 (1977); 42 U.S.C. 2000e-2(h).

Congress demonstrated particular concern in 1964 that 
the proposed Title VII might impair the legitimate in­
terests of incumbent employees (see, e.g., 110 Cong. Rec. 
486-489 (1964) (remarks of Sen. Hill), and accordingly 
conferred immunity under Section 703(h) of Title VII to 
bona fide seniority systems. Consistent with this congres­
sional intent, this Court has generally resisted efforts by 
litigants to modify seniority systems. See, e.g., Team­
sters V. United States, 431 U.S. 324 (1977) ; American 
Tobacco Co. v. Patterson, 456 U.S. 63 (1982). The only 
exception to this rule is the use of constructive seniority 
as a proper remedy for identifiable victims of discrimina­
tion, because it equitably places them in their rightful 
slot within the seniority system and does so without in 
any way modifying that system. See Franks V. Bowman 
Transportation Co., 424 U.S. 747 (1976). This excep­
tion is justified because of Congress’s overriding desire to 
“make whole” individual victims of discrimination. See 
Connecticut V. Teal, 457 U.S. 440 (1982;.

But this case involves both a bona fide seniority sys­
tem and claims solely by individuals who have never 
shown that they were actual victims of discrimination. 
This Court had virtually the same situation before it in 
Teamsters V. United States, 431 U.S. 324 (1977), and 
held in a slightly different context that no modification of 
the employer’s seniority system was justified.

The district court’s order amounts to nothing more than 
a retroactive effort to confer constructive seniority rights 
identical to those denied the employees in Teamsters who 
could not show that they were victims entitled to be 
slotted into the seniority system. Time has passed and 
the financial condition of the employer has worsened. 
But the minorities involved are still non-victims of dis­
crimination who can receive relief only at the expense of 
“bumping” incumbent white employees. See Patterson v.



10

American Tobacco Co., 535 F.2d 257 (4th Cir. 1976). 
Moreover, in order to grant this relief, the district court 
must substantially modify the seniority system as it ap­
plies to layoffs and demotions and thereby undermine the 
City’s legitimate purpose in adopting the system negoti­
ated with the union representing its employees. Accord­
ingly, the reasoning and holding of Teamsters directly 
control this case and forbid the modification of the decree 
at issue here.

2. The district court’s order, requiring non-victim mi­
norities who are discharged or demoted because of senior­
ity to be retained, is contrary to the last sentence of 
Section 706(g), 42 U.S.C. 2000e-5(g), which precludes a 
district court from ordering reinstatement or promotion 
if the reason for an employee’s release or demotion is 
something other than race or sex, etc. The last sentence 
in Section 706(g), which reflects the statutory intent to 
“make whole” actual victims of racial discrimination, 
permits employers to make employment decisions on any 
basis other than race and thus immunizes the decision of 
the City of Memphis to lay off minority employees who 
are not victims of discrimination and who have less senior­
ity than other employees.

3. By concluding that Title VII permitted the race 
conscious order at issue, the courts below have unneces­
sarily created a difficult constitutional issue under the 
equal protection component of the Due Process Clause of 
the Fifth Amendment, regarding the scope of Congress’s 
power under Section 5 of the Fourteenth Amendment to 
authorize courts to provide for race conscious reme­
dies. Accordingly, the Court should vacate the order as 
inconsistent with Title VII in order to avoid the constitu­
tional issue that otherwise would exist. See United States 
v. Security Industrial Bank, No. 81-184 (Nov. 30, 1982) ; 
NLRB v. Catholic Bishop, 440 U.S. 490 (1979).



ARGUMENT
THE DISTRICT COURT’S ORDER EXCEEDED ITS 
REMEDIAL AUTHORITY UNDER SECTION 706(g) 
OF TITLE VII

The opinion of the court of appeals touches on a variety 
of issues relating generally to affirmative action, con­
sent decrees and collective bargaining agreements, but 
the court’s analysis never reaches the real issue in this 
case, viz., whether a district court can modify a consent 
decree, which was designed solely to remedy hiring and 
promotion discrimination, in order to grant minority in­
dividuals, who have made no showing that they were 
victims of discrimination, rights that are superior to the 
seniority rights of white employees. Thus, regardless of 
the validity of the original decree and the relationship in 
general between consent decrees and collective bargain­
ing agreements— the issues that preoccupied the court of 
appeals— this Court’s decisions make clear that a court 
cannot, consistent with Title VII of the Civil Rights Act 
of 1964, in effect abrogate a seniority system on behalf 
of non-victims in order to protect them from layoffs or 
demotions that otherwise would occur on the basis of the 
last-hired, first-fired rule.112 12

12 A threshold question is whether this ease is controlled by 
Title VII principles. The complaint filed by the United States in 
1974 was predicated solely on Title VII, but the complaints of the 
respondents alleged, in addition to a Title VII violation, that the 
employment practices of the Fire Department violated 42 U.S.C. 
1981 and 1983 (J.A. 8, 15). The consent agreement, itself, is 
plainly limited to Title VII; the City expressly denied any violations 
of law, but entered into the agreement “to insure that any dis­
advantage to minorities that may have resulted from past hiring 
and promotional practices be remedied” (Pet. App. A59-A60; em­
phasis supplied). This settlement thus is plainly limited to respond­
ents’ Title VII claim that the City’s employment practices have a dis­
criminatory effect. See Griggs V. Duke Power Co., 401 U.S. 424 
(1971). The City did not concede that it engaged in any purposeful 
discrimination, nor has any court made such a finding, which would 
be required for this case to be controlled by principles other than 
Title VII’s. See Washington V. Davis, 426 U.S. 229 (1976); General

11



12

Although this case was settled, it is clear that for 
present purposes the remedial authority of the district 
court under 42 U.S.C. 2000e-5(g) is the same as if the 
case had gone to a final, litigated judgment.13 Once it 
is adjudged that an employer has engaged in an unlawful 
employment practice within the meaning of Title VII, a 
district court is invested with authority to enjoin the em­
ployer from engaging in that practice in the future, and 
also is empowered to “ order such affirmative action as

Building Contractors Association V. Pennsylvania, No. 81-280 (June 
29, 1982). Accordingly, the propriety of the district court’s remedial 
order must be measured by Title VII standards.

13 The opinion of the court of appeals basically ignores Title VII 
and focuses exclusively on the authority of a district court to imple­
ment a consent decree in light of the parties’ intent and t» adapt 
the decree to changed circumstances. The effect of the court’s 
reasoning, however, is to grant the district court greater remedial 
authority in a, Title VII case concluded by consent decree than the 
court would have if  the case had been litigated to' final judgment 
and a remedial order entered. Obviously, such a result would seri­
ously deter employers from entering into consent agreements under 
Title VII. This would be in direct contravention of Congress’s 
expressed preference for voluntary settlement of employment dis­
crimination suits. See W. R. Grace & Co. V. Local 759, No. 81-1314 
(May 31, 1983), slip op. 13; Carson V. American Brands, Inc., 450 
U.S. 79, 88 n.14 (1981) ; Occidental Life Insurance Co. v. EEOC, 
432 U.S. 355, 368 (1977) ; Alexander V. Gardner-Denver Co., 415 
U.S. 36, 44 (1974). Moreover, a “ District Court’s authority to adopt 
a consent decree comes only from the statute which the decree is 
intended to enforce.”  System Federation V. Wright, 364 U.S. 642, 
651 (1961).

Nor can the expansive relief ordered in this case be justified on 
the theory that respondents relied on the consent decree to' assure 
their employment, “hav[ing] foregone their right to litigate the 
City’s past employment practices and possibly obtain greater relief” 
(Pet. App. A37). Respondents already had been granted substantial 
affirmative relief in the form of hiring goals that were more than 
satisfied by the City. Since respondents were not themselves vic­
tims of any discrimination, the district court could not have granted 
them any constructive seniority. Teamsters v. United States, supra. 
Accordingly, respondents could hardly have obtained any greater 
affirmative relief after trial than they received under the settlement.



13

may be appropriate, which may include * * * reinstate­
ment, or hiring of employees, * * * or any other equitable 
relief as the court deems appropriate.”  42 U.S.C. 2000e- 
5 (g ). Although the grant of equitable authority on its 
face is broad, it is necessarily constrained by the policies 
of the Act, as reflected in its substantive provisions. 
Compare H. K. Porter Co. v. NLRB, 397 U.S. 99, 108 
(1970). See also Ford Motor Co. v. EEOC, No. 81- 
300 (June 28, 1982), slip op. 8; Teamsters v. United 
States, 431 U.S. 324, 364 (1977) ; Moragne v. States 
Marine Lines, Inc., 398 U.S. 375, 405 (1970).

A. The Order Of The District Court Disregards The 
Important Statutory Policy Embodied In Section 
703(h), 42 U.S.C. 2000e-2(h), To Protect Seniority 
Systems, Ignores The Legitimate Interests Of Incum­
bent Employees In Those Systems And Grants Un­
warranted Protection To Non-Victims Of Discrimina­
tion

What the court of appeals’ discussion of the consent 
decrees and collective bargaining agreements completely 
ignores is that seniority is not just another term in a 
collective bargaining agreement. There is a special statu­
tory importance attached to seniority systems and the 
rights those systems allocate to employees that bears sig­
nificantly on the propriety of a district court’s exercise of 
equitable authority. See American Tobacco Co. v. Patter­
son, 456 U.S. 63, 75-76 (1982); California Breioers As­
sociation v. Bryant, 444 U.S. 598, 606-607 (1980) ; 
Humphrey v. Moore, 375 U.S. 335, 346 (1964). This 
Court has pointed out that “ seniority systems are af­
forded special treatment under Title VII itself.” Trans 
World Airlines, Inc. V. Hardison, 432 U.S. 63, 81 (1977). 
Section 703(h), 42 U.S.C. 2000e-2(h), by its terms, im­
munizes all bona fide seniority systems from challenge 
under Title VII, even systems, such as the one in this 
case, that have a disproportionate adverse impact on 
minorities (Teamsters v. United States, supra), or op­



14

erate to perpetuate past employment discrimination 
( United Air Lines, Inc. V. Evans, 431 U.S. 553 (1977) ).14

Members of Congress in 1964 were very concerned 
about the possible effect the proposed Title VII might 
have on the seniority rights of employees. See H.R. 
Rep. No. 914, 88th Cong., 1st Sess. 71-72 (1963); 110 
Cong. Rec. 486-487 (1964) (remarks of Sen. Hill). Ac­
cordingly, Senator Clark, one of the the floor managers 
of the bill, submitted a Justice Department memorandum 
stating that the proposed Title VII would not affect exist­
ing seniority rights. 110 Cong. Rec. 7207 (1964) ; id. at 
7212-7215; id. 7216-7217 (remarks of Sen. Clark).

During the Senate debates, Section 703(h) was in­
cluded in the substitute bill that eventually was adopted. 
The provision was adopted to clarify the Act’s “present 
intent and effect” with regard to seniority. 110 Cong. 
Rec. 12723 (1964) (remarks of Sen. Humphrey); id. at 
12818-12819 (remarks of Sen. Dirksen).15 Congress thus 
intended generally to accord special status to seniority 
systems and the stability that they provide to labor re­
lations and specifically expressed concern that Title VII 
not operate to modify the last-hired, first-fired principle 
that lies at the heart of most seniority systems. Ac­
cordingly, Title VII remedies must be designed to pre­
serve the fundamentals of bona fide seniority systems. 
Compare American Tobacco Co. v. Patterson, supra; 
United Air Lines, Inc. v. Evans, 431 U.S. 553, 559 
(1977); Teamsters v. United States, supra; California

14 Section 703(h) of Title VII, 42 U.S.C. 2000e-2(h), provides, in 
pertinent part:

Notwithstanding any other provision of this subchapter, it 
shall not be an unlawful employment practice for an employer 
to apply different standards of compensation, or different 
terms, conditions, or privileges o f employment pursuant to' a 
bona fide seniority * * * system * * * provided that such dif­
ferences are not the result of an intention to discriminate be­
cause of race * * *.

15 Congress made no change in Section 703(h), when it revised 
Title VII in 1972. See Teamsters V. United States, supra, 431 U.S. 
at 354 n.39.



15
Brewers Association v. Bryant, 444 U.S. 598 (1980), 
with Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976).

Under this Court’s decisions, the only accommodation 
that a bona fide seniority system must make under Title 
VII is to allow actual victims of discrimination to be 
slotted into their rightful place in the system. See, e.g., 
Franks v. Bowman Transportation Co., supra. Franks 
involved a discrimination claim by a class of black non­
employee applicants who had unsuccessfully sought em­
ployment as over-the-road truck drivers. The district 
court found that the employer had engaged in a pattern 
of racial discrimination in hiring, transfer and discharge 
of employees. The district court ordered the employer to 
give priority consideration to class members for over- 
the road jobs, but declined to award back pay or con­
structive seniority retroactive to the date of the individ­
ual’s application. The court of appeals reversed the dis­
trict court’s ruling on hack pay, but affirmed its refusal to 
award retroactive seniority.

This Court held that for actual victims of unlawful 
discrimination constructive seniority back to the date of 
the discriminatory act was an appropriate remedy in 
order to restore those victims to their “rightful place,” 
that is, restore them “to a position where they would have 
been were it not for the unlawful discrimination.” 424 
U.S. at 764, quoting 118 Cong. Ree. 7168 (1972). See also 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 
(1975).

The Court’s remedial holding granting make-whole re­
lief to individual victims reflects Congress’s dominant 
concern in Title VII for protecting the individual. Un­
lawful employment practices are defined by an employer’s 
decision to hire or fire “any individual, or otherwise to dis­
criminate against any individual * * * [or to] deprive or 
tend to deprive any individual of employment oppor­
tunities” because of the individual’s race, etc. 42 U.S.C. 
2000e-2 (a). “ The principal focus of the statute is the 
protection of the individual employee * * *. Indeed, the



16

entire statute and its legislative history are replete with 
references to protection for the individual employee 
* * *.”  Connecticut v. Teal, 457 U.S. 440, 453-454 
(1982); see also Los Angeles Department of Water & 
Power v. Manhart, 435 U.S. 702, 709 (1978) ; Arizona 
Governing Committee V. Norris, No. 82-52 (July 6, 1983), 
slip op. 9; pages 17-21, 26-29, infra.

Thus, where the dominant concern of Congress— mak­
ing individual victims whole—has competed with Con­
gress’s concomitant intention to protect seniority systems 
and the rights they accord to incumbent employees, this 
Court has very carefully accommodated both interests. 
Significantly, the constructive seniority rights awarded in 
Franks were not judicially invented rights, but only the 
rights defined by the existing seniority system itself, once 
the “ rightful place” in that system of each identifiable 
victim of discrimination was determined. The seniority 
right of incumbent employees would also continue to be 
defined by that system, even though the “ rightful place” 
in that system of some incumbents would be adjusted to 
accommodate the rights of individuals who would have 
been senior to them but for the employer’s unlawful dis­
criminatory acts. See 424 U.S. at 774-779. Thus, the 
relief prescribed in Franks fundamentally preserves 
rather than abrogates rights under bona fide seniority 
systems, while extending those rights to identifiable 
victims of discrimination in order to make them whole.

The basic statutory preservation of bona fide seniority 
systems was reasserted by the Court the next year in 
Teamsters V, United States, 431 U.S. 324 (1977). In 
Teamsters, the defendant trucking company •was found to 
have engaged in an unlawful pattern or practice of con­
fining blacks and Hispanics to lower paying, less desirable 
jobs, and excluding them from positions as over-the- 
road (“ OTR” ) truck drivers. The seniority system in the 
employer’s collective-bargaining agreement provided that 
an incumbent employee who transferred to an OTR posi­
tion was required to forfeit the competitive seniority he 
had accumulated in his previous position (company sen­



iority) and to start at the bottom of the OTR driver’s 
seniority list.

After affirming the district court’s finding of liability 
under Title VII, the court of appeals held that all black 
and Hispanic incumbent employees—including those who 
had never applied for OTR positions— were entitled to bid 
for future OTR jobs on the basis of their accumulated 
company seniority. The appeals court further held that 
each class member filling such a job was entitled to an 
award of retroactive seniority on the OTR driver’s sen­
iority list dating back to the class member’s “ qualifica­
tion date”— the date when (1) an OTR driver position 
was vacant and (2) the class member met or could have 
met the job’s qualifications.

This Court first reversed the holding that the defend­
ant’s seniority system was itself subject to attack as 
perpetuating the past effects of discrimination. Although 
the system appeared to violate the rationale in Griggs v. 
Duke Power Co., 401 U.S. 424 (1971), the Court held that 
Congress did not “ outlaw the use of existing seniority 
lists and thereby destroy or water down the vested sen­
iority rights of employees * * *.”  431 U.S. at 352-353.

The Court then considered what remedy was appro­
priate for the other discriminatory employment practices 
that had been proved. This Court rejected the defend­
ant’s argument that only individuals who had actually 
applied for OTR positions could obtain relief under Sec­
tion 706(g). Instead, the Court held that relief in the 
form of constructive seniority was available to those 
who could satisfy the burden of proving that they were 
deterred from applying for that position because of the 
employer’s discriminatory practices and that they were 
qualified for the job. 431 U.S. at 372. This latter class 
of plaintiffs, like those who were actually precluded from 
obtaining the OTR jobs, could show when they presumably 
would have been employed, but for the discrimination, 
and thus relief to them would not require modification of 
the seniority system itself, but merely “rightful place” 
fitting of individuals into that system. 431 U.S. at 358.

17



18

As for those who could not make such a showing, the 
necessary result is that they were not entitled to any 
relief in the form of constructive seniority.

Teamsters establishes that Title VII remedies must 
preserve the seniority rights protected in Section 703(h). 
Preservation of those rights serves two important con­
cerns : protecting the stability of labor relations by main­
taining the seniority system and being fair to innocent 
incumbent employees.1,6 With regard to the latter concern, 
this Court recently emphasized that, in crafting equitable 
relief under Title VII, courts must consider the legit­
imate interests of “ innocent third parties.” Ford Motor 
Co. V. EEOC, supra, slip op. 20. See also Arizona Gov­
erning Committee v. Norris, supra, slip op. 5 (O’Connor, 
J., concurring). Indeed, even in a case (unlike this 
one) in which specified victims of unlawful employment 
discrimination have been identified, a court, in determin­
ing their rightful place, is “ faced with the delicate task of 
adjusting the remedial interests of discriminatees and 
the legitimate expectations of other employees innocent of 
any wrongdoing.” Teamsters v. United States, supra, 
431 U.S. at 372.16 17

16 Lower courts, have uniformly held that the relief for actual 
discriminatees doe'S not extend to bumping employees previously 
occupying jobs; victims must wait for vacancies to' occur. See, 
e.g., Patterson V. American Tobacco Co., 535 F.2d 257, 267 (4th 
Cir. 1976) ; Local 189, United Papermakers and Paperworkers V. 
United States, 416 F.2d 980, 988 (5th Cir. 1969). See also Airline 
Stewards <£ Stewardesses Association v. American Airlines, 573 
F.2d 960, 964 (7th Cir.), cert, denied, 439 U.S. 876 (1978). This 
understanding of the limits of Section 706(g) with regard to' actual 
victims may well have been ratified by Congress in 1972, since it 
was aware of the United Papermakers decision and nothing indi­
cates that the amendment to' Section 706(g) was an attempt to alter 
that interpretation.. See Subconam. on Labor of the Senate Comm, 
on Labor and Public Welfare, 92d Cong., 2d Sess., Legislative 
History of the Equal Employment Opportunity Act of 1972, at 1844 
(Comm. Print 1972) (hereinafter cited as 1972 Legislative History).

17 The court of appeals incorrectly relied upon the Seventh Cir­
cuit’s decision in Airline Stewards and Stewardesses Association V. 
American Airlines, supra, as showing how consent decrees can



19

In Ford Motor Co. v. EEOC, supra, this Court relied 
upon both the basic congressional intent to protect senior­
ity and the importance of fairness to incumbent employees 
in deciding that an employer charged with hiring dis­
crimination under Title VII can toll the continuing ac­
crual of back pay liability under Section 706(g) by un­
conditionally offering the claimant the job allegedly denied 
him for impermissible reasons. The Court expressly re­
jected the argument that the employer must also offer 
seniority retroactive to the date of the alleged discrimina­
tion, for such a rule would “encourage [] job offers that 
compel innocent workers to sacrifice their seniority to a 
person who has only claimed, but not yet proven, un­
lawful discrimination.” Slip op. 21 (emphasis added). 
Foreseeing the possibility that layoffs could occur before 
the reinstated (or newly hired) claimant’s Title VII suit 
was decided, the court reasoned that (ibid.)

an employer may have to furlough an innocent 
worker indefinitely while retaining a claimant who 
was given retroactive seniority. If the claimant

modify collective bargaining agreements in order to further the 
statutory policy favoring settlements of Title VII cases. The Stew­
ardesses case, correctly understood, is contrary to- the decision her 
low and illustrates how the relevant interests should be accom­
modated under Title VII. In Stewardesses, it was undisputed that 
each member of the plaintiff class had been a victim of the defend­
ant’s employment discrimination, but there was a dispute as to 
whether each member had preserved her right to sue. The defendant 
settled the case, and the intervening union sought to challenge 
the settlement.

In upholding the settlement, the court of appeals noted that each 
member of the class was a victim and that, although they all would 
receive seniority dating to the time of their wrongful discharge, 
they would not be hired unless there were an opening and they 
would not be permitted to bump incumbent employees from a partic­
ular base, even though their constructive seniority might otherwise 
have entitled them to do so. This is precisely the type of careful 
accommodating of the rights of actual victims of discrimination 
and innocent incumbent employees that this Court’s decisions re­
quire, and stands in stark contrast to the decision below which 
forced incumbent employees to be laid off SO' that non-victim 
minorities could keep their jobs.



2 0

subsequently fails to prove unlawful discrimination, 
the worker unfairly relegated to the unemployment 
lines has no redress for the wrong done him. We 
do not believe that “ ‘the large objectives’ ” of Title 
VII * * * require innocent employees to carry such 
a heavy burden.

What emerges from this Court’s decisions is the firm 
rule that a district court in a Title VII case may not 
modify a bona fide seniority system; it can only slot indi­
viduals into their rightful place within that system. In­
dividuals, such as those involved in this case, who are 
only beneficiaries of affirmative action and not victims of 
employment discrimination entitled to rightful place re­
lief, have no basis for claiming any seniority in addition 
to what they have actually accrued on the job. Thus, 
when the initial hiring order was issued in 1974 and 
again in 1980, the district court would have been wholly 
without authority to slot new applicants in place of in­
cumbents (see note 16, swpra) or to award non-victims 
of discrimination constructive seniority when hired. The 
district court’s order insulating a certain percentage of 
minority employees from dismissal under the race neutral 
seniority system adopted by the City was, however, tanta­
mount to an award of constructive seniority that placed 
its beneficiaries in a position superior to that of incum­
bent non-minority employees.18 Since the order concededly

18 It is of no significance that the award of constructive seniority 
here was only, for the limited purpose of determining who would 
be laid off or demoted. Under the City’s bona fide seniority system, 
that important question was to be determined on the basis of 
seniority.

Nor can the order be justified by the hyperbole of the: courts 
below that the proposed layoffs would undo all the good that the 
previous orders had accomplished. First, the percentage of minori­
ties in the Fire Department is still significantly greater than it was 
when this litigation began and thus, the post-layoff Department is 
significantly improved in racial balance over the prelitigation situ­
ation. Second, although layoffs are always traumatic to the individ­
ual, they do not normally last forever. The laid off minority em­
ployees are at the top of the list to be rehired or promoted and,



21

embraced persons who were not victims of the defendants’ 
unlawful employment discrimination, the district court’s 
award of retroactive seniority was indistinguishable-—save 
in its timing— from the award condemned in Teamsters.w

In the instant case, innocent firefighters were required 
to sacrifice not only their seniority, but also their jobs, to 
persons who have never claimed to be victims of unlawful 
discrimination. As a result of the district court’s decree, 
white firefighters with more years of service than black 
employees were furloughed or demoted, thus creating a 
new class of victims, who were innocent of any wrong­
doing, but were deprived of their rights under a valid

without the district court’s modification, when the financial crisis 
of the City is over, if it is not already, and fire personnel are hired 
or repromoted, minorities will continue back on the track set by the 
1980 order. The effect of the layoff is delay in achieving the order’s 
goal of a rough racial balance in employment at all levels, but delay 
is inherent in that process, given the legitimate interests of incum­
bents, and does not justify extraordinary relief.

w Nor is a contrary result justified by the court of appeals’ asser­
tion that allowing layoffs would undermine: the purpose of the- 1980 
decree (Pet. App. A37). There has been no new violation o f the Act 
that would require a modification of the decree and accordingly 
the issue is simply whether the district court could have modified 
the seniority system when it initially entered its order in 1980. If 
the City of Memphis had been faced with this budgetary crisis in 
1980 when the original affirmative action order was imposed, no 
one would have suggested that the remedial order was undermined 
by the temporary failure of the City to integrate its. work force. 
Certainly, the district court would have lacked authority either to 
order the City to hire additional employees or to require the City 
to bump incumbent white employees to make room for minority 
hires. See cases cited note 16, supra. The order in this case 
does no more than retroactively accomplish what the court could 
not have- done directly in 1980 if the economic problems had existed 
then; it requires the City essentially to bump incumbent whites. 
This result is directly contrary to this Court’s admonition that 
equity under Title YII should not permit “ ‘different results for 
breaches of duty in situations that cannot be differentiated in 
policy.’ ” Ford Motor Co. v. EEOC, supra, slip op. 8 (citation 
omitted).



22
seniority system.20 This was not a permissible exercise 
of remedial authority under Title VII. That remedial 
authority is limited to the effectuation of the policies of 
the Act; one of the Act’s firmly established policies is the 
preservation of bona fide seniority systems. No court has 
found any discriminatory purpose underlying the senior­
ity system in this case 21 and accordingly the district court

bo The1 court of appeals reasoned (Pet. App. A32) that modifica­
tion of the consent decree could be justified as an interpretation 
of the consent decree as a contractual obligation. Aside from the 
obvious point that the parties made no provision for layoffs and 
thus the decree cannot fairly be construed to require modification 
of the layoff process (Pet. App. A46; Martin, J., dissenting), it is 
clear that the City could not unilaterally contract away the incum­
bent employees’ seniority rights that are in fact protected by Title 
VII. See W.R. Grace & Co, V. Local 759, No. 81-1314 (May 31, 
1983), slip op. 14.

Nor could such an agreement be approved under United Steelwork­
ers V. Weber, 443 U.S. 193 (1979). Unlike the private voluntary craft 
training program in that case, the court’s layoff order led directly 
to the discharge of senior white employees, solely in order to main­
tain existing racial percentages. Even in interpreting Title- VIPs 
prohibitions in a context not involving state action, Weber dis­
approved actions which “ unnecessarily trammel the interests of the 
white employees.” 443 U.S. at 208. In contrast to this case, two of 
the critical facts leading to the conclusion that the training pro­
gram in Weber did not violate Title VII were that the program 
did not require thei discharge of white workers and their replace­
ment with new black hires and was not intended to maintain 
racial balance. What is more important, the defendant in this case 
is a municipality and its conduct constitutes state action. Accord­
ingly, the court of appeals’ “contract” theory also implicates a 
serious equal protection issue, which that court completely ignored. 
Since the City plainly did not enter into a contract modifying 
seniority rights on, the- basis of race, however, there is no need for 
the Court to- consider the constitutional implications of such a 
contract.

21 The court of appeals at one point seems to- indicate- that the 
City selected job classifications for layoff “where- minorities had 
recently made the most, gains under the affirmative- action, pro­
visions” (Pet. App. A37). No similar finding was made by the 
district court, and the Mayor of the City testified that jobs in the 
Fire Department were chosen because a study revealed that the



23

was without authority to reconstruct it.22

B. The Limitation On The Court’s Remedial Authority 
Contained In The Last Sentence Of Section 708(g) 
Confirms That Congress Did Not Intend To Grant 
Constructive Seniority In The Circumstances Of This 
Case

Our argument that the policies of Title VII make plain 
that bona fide seniority systems ought not to be modified 
to grant non-victim beneficiaries of affirmative action 
additional protection from layoffs is confirmed by the 
limitation on the powers of a court of equity in Title VII 
cases contained in the last sentence of Section 706(g). 
That sentence reads in pertinent part:

No order of the court shall require the * * * rein­
statement, or promotion of an individual as an em­
ployee * * * if such individual * * * was suspended

City’s budget for the Fire Department was substantially higher 
than the national average and thus cute could be made there with­
out eliminating necessary services. (J.A. 36-37).

Obviously, if the City had selectively chosen layoffs on the basis 
of which jobs were filled by more blacks, this would be an inde­
pendent basis for challenging the City’s action, but the remedy 
for such discrimination would not be to- require a modification in 
the City’s bona fide seniority system.

33 The decision of the district court cannot be sustained as a 
proper exercise of “ discretion in protecting the status quo in the 
Fire Department”  (Pet. App. A46) (Martin, J., concurring and dis­
senting) . While it is true that the entry of a preliminary injunction 
by a district court generally is reviewable on an abuse of discretion 
standard, “ [ i ] f  the [reviewing] court has a view as to the applicable 
legal principle that is different from that premised by the trial 
judge, it has, a duty to apply the principle which it believes proper 
and sound.” Delaware & H. Ry. V. United Transportation Union, 450 
F.2d 603, 620 (D.C. Cir.) (Leventhal, J.), cert, denied, 403 U.S. 911 
(1971). See also Withrow v. Larkin, 421 U.S. 35, 55 (1975). The 
preservation of the status quo cannot be justified at the expense of 
wrongfully depriving the enjoined party and third parties of sub­
stantial rights. 450 F.2d at 621; O’Connor V. Board of Education, 
645 F.2d 578, 582-583 (7th Cir.), cert, denied, 454 U.S. 1084 (1981) ; 
Punnett V. Carter, 621 F.2d 578, 587 (3d Cir. 1980).



24

or discharged for any reason other than discrimina­
tion on account of race, color, religion, sex, or na­
tional origin * * *.

Section 706(g) by its terms thus precludes the kind of 
individual redress granted to these minority employees 
who have suffered no discrimination.28

This conclusion is also required by the remedial pur­
poses of Title VII embodied in Section 706(g). As this 
Court has recognized, “ [t]he scope of a district court’s 
remedial powers under Title VII is determined by the 
purposes of the Act.” Teamsters V. United States, supra, 
431 U.S. at 364. The central remedial purposes of Title 
VII are, as this Court has often observed, “to end dis­
crimination * * * [and] to compensate the victims for 
their injuries.”  Ford Motor Co. v. EEOC, supra, slip op. 
11; see, e.g., Teamsters v. United States, supra, 431 U.S. 
364; Albemarle Paper Co. v. Moody, supra, 422 U.S, at 
418. Section 706(g) thus requires a court “ to fashion 
such relief as the particular circumstances of a case may 
require to effect restitution, making whole insofar as 
possible the victims of racial discrimination in hiring.” 
Franks v. Bowman Transportation Co., swpra, 424 U.S. 
at 764 (footnote omitted) ; accord, Teamsters v. United 
States, supra, 431 U.S. at 364.

The district court’s decree ordered the City to imple­
ment layoffs in order to maintain existing levels of black 
employees. In other words, the decree required the City 
to lay off employees in accordance with racial quotas, and 
did so without regard to whether the individuals retained 
had been the actual victims of the City’s employment dis­
crimination. This remedy, which inevitably provides em­
ployment preferences to individuals who were not “ sus­
pended or discharged” by the employer in violation of 
Title VII, would thus appear to be the archetypal form 23

23 The Equal Employment Opportunity Commission disagrees with 
this interpretation of Section 706(g) and believes that its adoption 
might call into- question numerous extant consent decrees and con­
ciliation agreements to which the EEOC is party.



25

of relief that Congress determined should not be used to 
“ remedy” such violations of the Act. The statute’s lan­
guage on this point is further supported by its legislative 
history.24 25 * *

Representative Celler, floor manager of the House bill 
in 1964 and a principal draftsman of Section 706(g) (see 
110 Cong. Rec. 2567 (1964) (remarks of Rep. Celler)), 
expressly noted that a court order could be entered only 
on proof “ that the particular employer involved had in 
fact, discriminated against one or more of his employees 
because of race,”  emphasizing that “ [e]ven then, the 
court could not order that any preference be given to any 
particular race * * *, but would be limited to ordering an 
end to discrimination.”  Id. at 1518. Representative Cel- 
ler’s understanding of Title VII was repeated by other 
supporters during the House debate:2®

Supporters of Title VII in the Senate, following the 
lead of Senator Humphrey, the Democratic floor manager 
of the bill (110 Cong. Rec. at 5428 (1964)), took a sim­
ilar view of the remedial authority of the courts under 
Section 706(g). In an interpretative memorandum often 
cited by this Court as an “authoritative indicator” of the 
meaning of Title VII (e.g., American Tobacco Co. v. Pat­
terson, supra, 456 U.S. at 73), Senators Clark and Case, 
the bipartisan floor “ captains” responsible for explaining 
Title VII, provided a detailed description of the intended

24 For a fuller description of the legislative history, see Com­
ment, Preferential Relief Under Title VII, 65 Va. L. Rev. 729 
(1979). See also Brief Amicus Curiae for the AFL-CIO at pages 
18-25 and la-8a.

25 See 110 Cong. Rec. 1540 (Rep. Lindsay); id. at 1600 (Rep.
Minish). Similarly, an interpretative memorandum prepared by 
the Republican Members of the House Judiciary Committee de­
fined the scope of permissible judicial remedies under Title VII 
thusly: “ [A] Federal court may enjoin an employer * * * from 
practicing further discrimination and may order the hiring or 
reinstatement of an employee * * *. But, [Tjitle VII does not 
permit the ordering of racial quotas in businesses or unions * * *.”
(Id. at 6566 (emphasis added)).



meaning of Section 706(g). Noting that “ the court could 
order appropriate affirmative relief,” Senators Clark and 
Case stressed:

No court order can require * * * reinstatement * * * 
or payment of back pay for anyone who was not 
discriminated against in violation of this title. This 
is stated expressly in the last sentence of Section 
[706(g)] which makes clear what is implicit 
throughout the whole title; that employers may hire 
and fire, promote and refuse to promote for any 
reason, good or bad, provided only that individuals 
may not be discriminated against because of race, 
color, religion, sex, or national origin. [110 Cong. 
Rec. at 7214. See id. at 6549 (Senator Humphrey).]

Moreover, nothing in the 1964 legislative debates so 
much as hints at support for the remedy adopted by the 
district court here. To the contrary, every Representa­
tive and every Senator to address the issue decried the 
use of such remedies. See 110 Cong. Rec. 6549 (remarks 
of Sen. Humphrey) ; id. at 6563 (remarks of Sen. Ku- 
chel), 7207 (remarks of Sen. Clark).2,0

Congress’s dominant concern with granting victim- 
specific, make-whole relief was not modified when Con­
gress amended Title VII in 1972. The only arguably 
relevant change of Section 706(g) was the addition of 28 * * * * * * * *

28 To dispel all doubt as to the intended reach of Section 706(g),
Senator Humphrey expressly addressed the claims of opponents
regarding quota remedies as follows (110 Cong. Rec. 6549) : “ Con­
trary to the allegations o f some opponents of this title, there1 is
nothing in it that will give any power to the Commission or to any
court to require * * * firing * * * of employees in order to meet a 
racial ‘quota’ or to' achieve a certain racial balance.” See also id. at 
6563 (remarks of Sen. Kuchel); id. at 7207 (remarks of Sen. Clark). 
Moreover, throughout the Senate' debate, the principal Senate spon­
sors prepared and delivered a daily Bipartisan Civil Rights Newslet­
ter to1 supporters of the bill. The issue of the Newsletter published 
two days after the opponents’ filibuster had begun, declared: “Under 
title VII, not even a court, much less the Commission, could order
racial quotas or * * * payment of back pay for anyone who is not
discriminated against in violation of this title.” Id. at 14465 (em­
phasis added).

2 6



27

language making clear that discriminatees are entitled 
not only to the specific types of relief expressly mentioned 
in the section, but also to “any other equitable relief as 
the court deems appropriate.” 27

That this language was not added to the first sentence 
of Section 706(g) for the purpose of expanding judicial 
remedial authority beyond traditional limits is made clear 
in the Section-by-Section Analysis of the conference bill.28 * 38

27 The language added in 1972 had its origin in an amendment 
introduced by Senator Dominick, who opposed a provision in the 
Labor Committee bill to confer “cease and desist” authority on the 
EEOC ; the committee bill proposed to make no change in either 
Section 70S or Section 706(g). Dominick’s filibuster of the com­
mittee bill ended with adoption of his amendment, which denied the 
EEOC independent enforcement authority, but granted it power 
to institute lawsuits in federal court. The purpose o f the language 
added to the first sentence of Section 706(g) was not explained, 
or even discussed, by Senator Dominick or anyone else during the 
debate.

38 The House of Representatives legislated in 1972 on the under­
standing that Title VII did not, and as amended would not, au­
thorize judicial impostion. of quota remedies. Although it is not 
at all clear precisely what any individual member of Congress meant 
when referring to “quotas,” either in 1964 or 1972, it seems plain 
that the definition must encompass the type of strict numerical 
guarantee against layoffs at issue in this case. Accordingly, there 
is no occasion to' consider here whether these legislative statements 
would apply to any situation except the classic, fixed numerical 
quota remedy in the layoff context.

The 1972 amendments began in the House, where Representative 
Hawkins introduced a bill designed, among other things, to give 
the EEOC “cease and desist” powers and to transfer the adminis­
tration of Executive Order No. 11246 from the Labor Department's 
Office of Federal Contract Compliance (OFCC) to the EEOC. Be­
cause the OFCC had imposed quotas in its enforcement of E.O. 
11246, many members of Congress feared that the bill would confer 
on the EEOC authority to order employment quotas.

Before1 debate1 commenced, Representative Dent, the bill’s floor 
manager, proposed an amendment that “would forbid the EEOC 
from imposing any quotas or preferential treatment of any employees 
in its administration of the Federal contract-compliance program.” 
1972 Legislative History, supra, note 16, at 190. The amendment did 
not address the remedial power of courts under Title VII because,



That Analysis explained that “ the scope of relief under 
[Section 706(g)] is intended to make the victims of un­
lawful discrimination whole, * * * [which] requires that 
persons aggrieved by the consequences and effects of the 
unlawful employment practice be, so far as possible, re­
stored to a position where they would have been were it 
not for the unlawful discrimination.”  (Emphasis added.) 
118 Cong. Rec. 7168 (Senate); id. at 7565 (House).39 
Compare Franks v. Bowman Transportation Co., supra, 
424 U.S. at 764. 29 *

28

according to Representative Dent, “ [s]uch a prohibition against the 
imposition of quotas or preferential treatment already applies to' ac­
tions brought under Title VII.” Ibid. See also id. at 204; id. at 208- 
209 (remarks of Rep. Hawkins). The House ultimately passed a sub­
stitute bill that left administration of Executive Order No. 11246 
with the OFCC, and the Dent amendment never came a vote. The 
House debate reflects, however, broad agreement that; Title VII does 
not and should not permit courts to order “quota” remedies.

It is also noteworthy that the 1972 Congress refused to follow 
the Senate’s proposed amendment to delete the final sentence from 
Section 706(g). (S. 2515, 92d Cong., 2d Sess. (1972); 1972 Legisla­
tive History, supra, note 16, at 1783). Instead, it ultimately adopted 
the House bill (H.R. 1746, 92d Cong., 1st Sess. (1972)), which left 
the 1964 provision largely unchanged, except for the addition of a 
provision limiting back pay awards. See 1972 Legislative History at 
331-332. Thus the bill that ultimately emerged from the House- 
Senate conference and became law contained the original final 
sentence of Section 706 (g ). S. Conf. Rep. No. 92-681, 92d Cong., 2d 
Sess. 5-6, 18-19 (1972) ; H.R. Conf. Rep. No. 92-899, 92d Cong., 2d 
Sess, 5-6, 18-19 (1972).

29 Some courts construing Section 706(g) have mistakenly at­
tached interpretative significance to Senator Ervin’s unsuccessful at­
tempt to amend Title VII in 1972. See United States V. Int’l Union
of Elevator Constructors, 538 F.2d 1012, 1019-1020 (3d Cir. 1976). 
Those amendments, however, did not seek to alter Section 706(g). 
Indeed, it is clear from the language of the amendments (118 
Cong. Rec. 1662, 4917) and from their sponsor’ s explanations (id. 
at 1663-1664, 4917-4918) that neither amendment was concerned 
directly with the remedial authority of courts. To the contrary, 
the amendments would merely havei extended to all federal Executive 
agencies, particularly the Office of Federal Contract Compliance, 
Section 703(j) ’s substantive prohibition against requiring employers 
to engage in racially preferential hiring in order to rectify racial



29

Thus, as this Court concluded in Franks v. Bowman 
Transportation Co., supra, 424 U.S. at 764 n.21, the 
“ extensive legislative history underlying the 1972 amend­
ments,” including addition of the “phrase speaking to 
‘other equitable relief’ in § 706(g)” indicates “ that 
‘rightful place’ was the intended objective of Title VII 
and the relief accorded thereunder.” Accord, Teamsters 
v. United States, supra; Albemarle Paper Co. v. Moody, 
supra. The persons who benefitted from the district 
court’s reconstructed seniority system were not victims 
of discrimination, and the grant of constructive seniority 
to them distorts the statute’s purposes by conferring em­
ployment benefits on the basis of race.

C. The Courts Below Should Have Avoided Creating A 
Substantial Constitutional Question By Refraining 
From Issuing A Race Conscious Seniority Order That 
Was Not Clearly Intended By Congress In Title VII

By upholding the district court’s order under Title VII 
for the sole purpose of preventing any reduction in the 
percentage of minority employees in the Fire Department, 
especially in the higher ranks, the court of appeals’ hold­
ing raises the issue of the constitutionality of a race 
conscious order under the equal protection component of 
the Due Process Clause of the Fifth Amendment (Pet. 
App. A22).30 Obviously, such an order classifies on the 
basis of race (indeed, disadvantages some persons because 
of their race) and thereby implicates a serious equal pro­

imbalance in their workforces. Ibid. Thus, notwithstanding the 
statements of Senators Javits and Williams, who spoke against the 
Ervin amendment (see 1972 Legislative History, supra note 16, at 
1046-1048, 1071-1073), the Ervin amendments did not seek to' alter 
Section 706 ( g ) , and did not directly concern the remedial authority 
of courts.

*> Equal protection analysis under the Due Process Clause of 
the Fifth Amendment is the. same as that under the Fourteenth 
Amendment. E.g., Buckley V. Valeo, 424 U.S. 1, 93 (1976). It is well 
established that judicial action is no less subject to the constraints 
of the Constitution’s equal protection guaranties than is legislative 
action. See Ex parte Virginia, 100 U.S. 339 (1879).



30

tection concern not previously addressed by this Court. 
Unlike the practices upheld in Fullilove v. Klutznick, 448
U. S. 448 (1980), and Regents v. Bakke, 438 U.S. 265 
(1978), individuals in this case have been deprived of 
previously vested rights; and unlike the situation in 
Franks v. Bowman Transportation Co., supra, those 
rights were subordinated in favor of competing claims 
based solely on race and not because of previous injury.

Whether Congress could provide under Section 5 of the 
Fourteenth Amendment that race conscious modifications 
of a seniority system to remedy past discrimination are 
permissible in order to maintain an integrated work 
place and, if so, what types of modifications it could 
approve, are issues that have never been decided by this 
Court. Cf. Fullilove v. Klutznick, supra, 448 U.S. at 483. 
But they are questions that should be addressed only when 
it is reasonably clear that Congress intended to authorize 
such relief and thereby force the Court to evaluate Con­
gress’s power to act through the courts on a race conscious 
basis.31 This is particularly so in a Title VII case, where 
the district court’s equitable authority is carefully de­
limited by Congress’s intent and the purposes of the Act. 
See Ford Motor Co. v. EEOC, supra, slip op. 8; Teamsters
V. United States, supra, 431 U.S. at 364; Albemarle 
Paper Co. v. Moody, supra, 422 U.S. at 416-417. Thus, if 
the Act does not support the order of the court, there is 
no residual equitable discretion.

Regardless of what can be gleaned from the legislative 
history of Title VII with regard to its general policies, 
there is not a shred of evidence that Congress either in 
1964 or 1972 intended to authorize a district court to 
modify a last-hired, first-fired rule in order to maintain

31 Another possibility, not presented here, would be a requirement 
that other race-neutral indicia of merit, in addition to seniority, be 
utilized in determining which employees to lay off, in the hope of 
preserving more of the results of the consent decree. It might well 
be within the constitutional power of Congress to impose such a 
requirement, but, for reasons previously stated, judicial modifica­
tion of the seniority system in that way would be inconsistent with 
the remedial policies of Title VII.



31

racial balance.32 Moreover, no court had ever considered 
the issue prior to 1972. In the absence of clear evidence 
of at least arguable congressional intent to allow a dis­
trict court to take into account such societal concerns as 
a basis for disadvantaging one racial group as against 
another with regard to seniority rights, the courts below 
should have interpreted Title VII as prohibiting the order 
adopted in this case and thereby avoided creating a diffi­
cult constitutional issue. See United States v. Security 
Industrial Bank, No. 81-184 (Nov. 30, 1982), slip op. 8; 
NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979).

CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.

R ex E. Lee
Solicitor General

W m . Bradford Reynolds 
Assistant Attorney General

Charles Justin Cooper 
Deputy Assistant Attorney General

Carter G. P hillips 
Assistant to the Solicitor General

Brian K. Landsberg
Dennis  J. D imsey 

Attorneys
August 1983

3:2 The court of appeals opined that racial balance in public safety 
departments is in the public interest (Pet. App. A31). If such 
concerns had led state or local authorities to adopt a race conscious 
hiring or layoff plan because of operational needs in enhancing 
the community’s fire protection, a substantial constitutional ques­
tion would be presented. See Minnick V. California Department of 
Corrections, 452 U.S. 105 (1981); cf. Morton v. Mancari, 417 U.S. 
535 (1974). But the City-adopted seniority system precluded the 
assertion here by the City of any such operational needs, and it was 
improper in these circumstances for the courts below to hypothesize 
such operational needs and thereby impinge upon constitutionally 
protected interests of individuals.

O . S .  GOVERNMENT PRINTING OFFICE; 1 9 8 3 4 1 4 3 9 4  7 4