Firefighters Local Union No. 1784 v. Stotts Brief on the Merits for Petitioner, Firefighters Local Union No. 1784

    Nos. 82-206 and 82-229 (Consolidated)

In T he

i ’ujmw (Uiwrt nf %  Inttefr Btatm
October T erm , 1983

JUL 1 0 1986 -------
F irefighters Local U nion N o. 1784,

Petitionerv.

Carl W. Stotts, et al,
Respondents

Mem phis  F ire Departm ent , et al,
Petitionersv.

Carl W. Stotts, et al,
Respondents

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

BRIEF ON THE MERITS FOR PETITIONER, 
FIREFIGHTERS LOCAL UNION NO. 1784

LE upi; PFENs
99 Hi

n e w 3AK, ;N.

y

° N  STREET 
10013

* Counsel of Record

A llen  S. Blair *
James R. Newsom  III 

Hanover, W alsh , Jalenak  
& Blair

219 Adams Avenue 
Memphis, Tennessee 38103 
(901) 526-0621 

Attorneys for Petitioner, 
Firefighters Local Union 
No. 1784.

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

L> 60



QUESTION PRESENTED FOR REVIEW

Whether a district court has the authority to modify a 
consent decree, silent in regard to layoffs, in such a man­
ner that a bona fide seniority system calling for layoff by 
seniority is abrogated to the detriment of innocent in­
cumbent employees, in an action where there has been no 
adjudication of discrimination by the employer or the 
union.*

* Firefighters Local Union No. 1784 has no parent, subsidiary or 
affiliate required to be reported under S.Ct.R. 28.1. The local union 
is itself an affiliate of the International Association of Firefighters, 
AFL-CIO, CLC.

(i)



11

Petitioner Firefighters Local Union No. 1784 inter­
vened in the District Court and appeared as an appellant 
in Court of Appeals Nos. 81-5348 and 81-5349. Memphis 
Fire Department, Robert W. Walker, City of Memphis 
and Joseph Sabatini were also appellants below and are 
petitioners in No. 82-229. Carl W. Stotts, individually 
and as a class representative on behalf of all others sim­
ilarly situated, and Fred L. Jones appeared as appellees in 
Court of Appeals Nos. 81-5348 and 81-5349, respectively, 
and are respondents in Nos. 82-206 and 82-229.

LIST OF PARTIES



Page

QUESTION PRESENTED FOR REVIEW ..................  i

LIST OF PARTIES ____________________ _____ ______ ii

TABLE OF CONTENTS________ ___ _______-................ iii

TABLE OF AUTH ORITIES....... ...................... ......... ..... iv

OPINIONS AND JUDGMENTS BELOW ________  1

JURISDICTION___ ________ ________________________  2

STATUTORY PROVISIONS INVOLVED ______   2

STATEMENT OF THE C A S E ..... .................... ............ . 2

SUMMARY OF ARGUM ENT_______________________  10

ARGUM ENT.................        12

CONCLUSION .......... ........ .................... ......................... ...... 48

STATUTORY APPENDIX .............. .............. ..................  la

TABLE OF CONTENTS

(iii)



IV

TABLE OF AUTHORITIES
CASES Page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ........ ...................... ...........................................  39

American Tobacco Co. v. Patterson, 456 U.S. 63
(1982) ___         41

Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981) ..........  20, 24
Chance v. Board of Examiners, 534 F.2d 993 (2d

Cir. 1976), cert, denied, 431 U.S. 965 (1977)...... 46
Connecticut v. Teal, 102 S.Ct. 2525 (1982 )_______ 29
EEOC v. Ford Motor Co., 102 S.Ct. 3057 (1982).... 39, 44 
Ford Motor Co. v. United States, 335 U.S. 303

(1948) _____       17,28
Fox v. United States Department of Housing and 

Urban Development, 680 F.2d 315 (3d Cir.
1982) ___     passim

Franks v. Bowman Transportation Co., 424 U.S.
747 (1976) _______   passim

Fullilove v. Klutznick, 448 U.S. 448 (1980) .......... 47
General Bldg. Contractors Ass’n, Inc. v. Pennsyl­

vania, 102 S.Ct. 3141 (1982)___ ________ ___ _ 22
Griggs v. Duke Power Co., 401 U.S. 424 (1971)___ 45
Holmberg v. Armbrecht, 327 U.S. 392 (1946)..... . 28
Hughes v. United States, 342 U.S. 353 (1952)____ 13, 23
Jersey Central Power & Light Co. v. Local Union 

327, IBEW, 508 F.2d 687 (3d Cir. 1975), cert.
denied, 425 U.S. 998 (1976)..... ............ ................ 46

McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) _____________ _____ ______  45

Memphis Fire Dept. v. Stotts, 679 F.2d 541 (6th
Cir. 1982), cert, granted, 103 S.Ct. 2451 (1983).. 9

Milliken v. Bradley, 418 U.S. 717 (1974)...... ..........  11, 29
Milliken v. Bradley, 433 U.S. 267 (1977)......... ....... 29
Northwest Airlines, Inc. v. Transport Workers, 451

U.S. 77 (1981)................... ................ ................ ...... 28,48
Orders v. Stotts, 679 F.2d 579 (6th Cir.), cert, de­

nied, 103 S.Ct. 297 (1982) _________ __________ 6
Paperworkers Local 189 v. United States, 416 F 2d 

980 (5th Cir. 1969), cert, denied, 397 U.S. 919
(1970) _______ __ ____ __ _________ _____ .......37,38,43



V

Page

Patterson v. American Tobacco Co., 535 F.2d 257
(4th Cir. 1976)_________ ___ ___ ______________ _ 43

Shelley v. Kraemer, 334 U.S. 1 (1948) ...... .............  29
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) ...... -............... ......... ....................... ................ 30
System Federation No. 91 v. Wright, 364 U.S. 642

(1961) .........................      20,28
Teamsters v. United States, 431 IJ.S, 324 (1977)....passim 
Trans World Airlines, Inc. v. Hardison, 432 U.S.

63 (1977)_________        4i
TV A v. Hill, 437 U.S. 153 (1978) ............................  28
United States v. Armour & Co., 402 U.S. 673

(1971) .............................. .................................... . io, 12
United States v. Atlantic Mutual Ins. Co., 343 U.S.

236 (1952) .................................................................  28
United States v. Atlantic Refining Co., 360 U.S. 19

(1959)..... ............ ........................ ....... .......................  13, 23
United States v. ITT Continental Baking Co., 420

U.S. 223 (1975)......... .................. ........... .......... 17
United States v. Swift & Co., 286 U.S. 106 (1932).. 10,18,

23
United States v. United Shoe Machinery Co., 391

U.S. 244 (1968)_____ _______ ______________ ____  17
United Steelworkers of America v. Weber, 443 U.S.

193 (1979), reh’g denied, 444 U.S. 889 (1980).... 22, 34 
University of California Regents v. Bakke, 438

U.S. 265 (1978)._____ _____ ____________ _____ _ 46,47
Washington v. Davis, 426 U.S. 229 (1976)________ 22
Watkins v. Steelworkers Local No. 2369, 516 F.2d

41 (5th Cir. 1975)................................................... 46
Waters v. Wisconsin Steel Works of International 

Harvester Co., 502 F.2d 1309 (7th Cir. 1974),
cert, denied, 425 U.S. 997 (1976)_______ ____ _ 46

Youngblood v. Dalzell, 568 F.2d 506 (6th Cir.
1978)

TABLE OF AUTHORITIES— Continued

20



Page
TABLE OF AUTHORITIES— Continued

STATUTES
United States Constitution

Fourteenth Amendment.......................................... 21
United States Code

28 U.S.C. § 1254(1)  ..............................................  2
42 U.S.C.

§ 1981..............................................   passim,
§ 1983 ..............................................................  passim
§ 1988 .......................... ............................................ 29, 30
§ 2000e, et seq. (Title VII of the Civil Rights

Act) .....................................................     passim
§ 2000e-2 (a) (Civil Rights Act § 703 ( a ) ) ____  2, 10,

34, 35
§ 2000e-2 (h) (Civil Rights Act § 703 ( h ) ) ........passim
§ 2000e-2(j) (Civil Rights Act § 703( j ) ) . .......passim
§ 2000e-5 (g) (Civil Rights Act § 706 ( g ) ) ........passim

MISCELLANEOUS
110 Cong. Rec________________ __ _______31, 32, 33, 34, 42
118 Cong. R ec...... ................... .......... ..........................  36
D. Dobbs, Handbook on the Law of Remedies

(1973 ).......       26
Bureau of National Affairs, Layoffs, RIFs and EEO 

in the Public Sector, Fair Employment Practices 
Supplement 439, February 13, 1982 .................... 19



In  T he

B n p n m t (tart a t %  M nlU h B u tm
October T erm , 1983

No. 82-206
F irefighters Local U nion N o. 1784,

Petitionerv.
Carl W. Stotts, et al.,

Respondents

No. 82-229
Mem phis F ire Departm ent, et al,

Petitionersv.
Carl W. Stotts, et al.,

Respondents

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

BRIEF ON THE MERITS FOR PETITIONER, 
FIREFIGHTERS LOCAL UNION NO. 1784

OPINIONS AND JUDGMENTS BELOW

The opinion of the Court of Appeals for the Sixth Cir­
cuit of which review is sought is reported officially at 679 
F.2d 541. The judgment of the Court of Appeals is set 
forth in the Joint Appendix at J.A. 141. The opinion is set 
forth in the appendix to the petition of Firefighters Local 
Union No. 1784 at App. 1. The oral ruling of the District 
Court, not reported, is reproduced in the appendix to the 
Union’s petition at App. 77.



JURISDICTION
The jurisdiction of the Court rests on 28 U.S.C. § 1254 

(1). The judgment of the Court of Appeals was entered 
on May 7, 1982. The petition for a writ of certiorari was 
timely filed on August 4, 1982 and was granted on June 
6, 1983.

STATUTORY PROVISIONS INVOLVED
The statutory provisions involved are as follows: 42 

TLS.C. §§ 1981, 1983 and 1988 and §§ 703(a), 703(h), 
703(j) and 706(g) of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. § 2000e-2(a), 2000e-2(h), 20Q0e-2(j) 
and 42 U.S.C. § 2000e-5(g).

The text of the statutes is set forth in the appendix 
thereto at la.

2

STATEMENT OF THE CASE
The cases presented for review arise from class actions 

filed by respondents, black male employees of the Mem­
phis Fire Department (hereinafter “ respondents” ), in 
the United States District Court for the Western District 
of Tennessee.1 Respondents asserted claims of violations 
of rights secured by Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §■§ 2000e, et seq., as amended by the 
Equal Employment Opportunity Act of 1972 (Pub.L. 
92-261, March 24, 1972) and by 42 U.S.C. §§ 1981 and 
1983 (Pet. A. 59). Particularly, the respondents alleged 
that certain promotional policies and practices on the part 
of the original defendants (hereinafter collectively the 
“ City” ) were unlawful and favored white employees over 
their minority counterparts in promotional decisions 
(J.A. 10, 16). The respondents did not attack the layoff 
or seniority policies of the City. The relief prayed for the

1 Stotts v. Memphis Fire Dep’t, No. 77-2104 (W.D. Term, filed 
Feb. 11, 1977) (J.A. 8) ; Jones v. Memphis Fire Dep’t, No. 79-2441 
(W.D. Term, filed June 19, 1979) (J.A. 15). The two actions were 
consolidated in September, 1979 (Union Petition [hereinafter re­
ferred to as “Pet.” ] A. 5).



3

respondents included an award of back pay, reimburse­
ment of lost pensions, Social Security, experience, train­
ing opportunities and promotions (J.A. 11, If 4; 17, 
114). Petitioner Firefighters Local Union No. 1784 
(hereinafter “ Union” ) was not named as a defendant in 
either complaint. Respondents did not pray for an award 
of constructive competitive seniority. As a result, the 
Union did not intervene as the City of Memphis Fire 
Services Division seniority system was not directly 
implicated by these actions.

When these actions were filed there was in effect a city­
wide seniority system that had been adopted by the City 
of Memphis as an employment practice in 1973 (J.A. 49). 
Under the city-wide seniority system, an employee’s 
seniority is calculated on the basis of length of service in 
permanent employment with the City (J.A. 67, 85). 
Seniority status is freely transferable from one city divi­
sion to another (i.e., from sanitation to fire) (J.A. 70-71, 
103) and from one job classification to another (i.e., from 
private to lieutenant) (J.A. 67, 103). The city-wide 
seniority system was negotiated into the City’s Memoran­
dum of Understanding with the Union in 1975 (Pet. A. 
80-81; J.A. 49, 115). The city-wide seniority system con­
ferred competitive seniority status to individual em­
ployees in the Fire Services Division for priority in job 
decisions regarding transfers (J.A. 42, 103) and layoffs 
(Pet. A. 80-81; J.A. 49, 115, 119).

The instant actions were also filed against the back­
ground of a prior consent decree entered into by the City 
of Memphis and the United States Department of Justice 
in 1974 (hereinafter the “ 1974 Decree” ) (J.A. 98-115). 
The 1974 Decree arose from United States v. City of 
Memphis, No. 74-286 (W.D.Tenn.). This action alleged 
that the City had engaged in a pattern or practice of dis­
crimination based on race and sex in hiring and promo­
tion within its divisions (J.A. 98). The 1974 Decree 
resolved all issues raised by the complaint in regard to 
several city divisions, including the Fire Division (J.A.



4

98). The 1974 Decree explicitly states that the entry of 
the decree “ shall not constitute an adjudication or admis­
sion by the City of any violation of law or findings on 
the merits of the case” (J.A. 99).

In the 1974 Decree the City agreed to undertake the 
long-term goal of “achieving throughout the work force 
proportions of black and female employees in each job 
classification approximating their respective proportions 
in the civilian work force” by means of hiring qualified 
black applicants to fill vacancies in the force (J.A. 101). 
The City also agreed to attempt to meet an interim per­
centage hiring goal (J.A. 105).

The 1974 Decree contains no admission by the City that 
particular individuals were entitled to “victim” status, 
nor does the 1974 Decree award constructive competitive 
seniority. The 1974 Decree did not dilute the city-wide 
seniority system. To the contrary, it endorses the use of 
the system in regard to the City’s employment decisions 
in these terms:

The City shall, for all purposes of promotion, trans­
fer and assignment, compute the seniority of a per­
son in the affected class as defined in paragraph 5 
[incumbent female and minority employees of the 
City], as the total seniority of that person with the 
City.

(J.A. 103)2 Neither does the 1974 Decree commit the 
City to a specified timetable for achieving its long-term 
goals. Rather, it is noted that the goals are “ subject to 
the anticipated budgeted vacancies in the City” (J.A. 
105). The 1974 Decree utilizes hiring as the exclusive 
means of achieving its long-term goals in the Fire Divi­
sion. No provision of the 1974 Decree has an adverse 
impact on the job security or seniority rights of incum­
bent fire employees.

s As indicated above, the seniority system only applied to trans­
fers and layoffs in the Fire Services Division (Pet. A. 80-81).



5
Against this background, the instant actions were 

settled by the entry of a consent decree in the District 
Court on April 25, 1980 (hereinafter the “ 1980 Decree” ) 
(Pet. A, 59-69). As with the 1974 Decree, by agreeing to 
the entry of the 1980 Decree, the City did not “admit any 
violations of law, rule, or regulation with respect to the 
allegations made by plaintiffs [respondents herein] in 
their complaints” (Pet. A. 60).8

The 1980 Decree adopts the same long-term goal and 
hiring relief as that contained in the 1974 Decree (Pet. A. 
64). The 1980 Decree also adopts the approach of the 
1974 Decree in establishing an interim hiring goal for 
the City to fill “on an annual basis at least 50% of all 
vacancies with qualified black applicants” (Pet. A. 64; 
J.A. 101). Neither decree requires the City to hire any 
particular number of employees (J.A. 101-02). The 1980 
Decree contains an additional goal “ of promoting blacks 
in the proportion of at least 20% for each civil service 
classification or uniformed rank as measured on an an­
nual basis” (Pet. A. 65). As was true with the 1974 De­
cree, the 1980 Decree contains no admission by the City 
that particular individuals were entitled to “victim” 
status, nor does the Decree award constructive competi­
tive seniority. Likewise, the 1980 Decree did not dilute 
the city-wide seniority system. The 1980 Decree contains 
an explicit waiver by plaintiffs of “a hearing and findings 
of fact and conclusions of law on all issues raised by the 
complaints” (Pet. A. 60). No class member raised objec­
tions to the 1980 Decree prior to or after its entry (Pet. 
A. 7). The respondents also waived any entitlement to 
further relief:

Both plaintiffs [respondents] and the class they rep­
resent shall seek no further relief for the acts, prac­
tices or omissions alleged in the complaints save to 3

3 The 1980 Decree: states the intention of the parties to parallel 
and supplement therein the relief provided in the 1980 Decree, 
thereby disclaiming an intention to conflict with the 1974 Decree 
(Pet. A. 60).



6
enforce the provisions of this decree, thereby waiv­
ing the right to seek further relief.

(Pet. A. 61) (emphasis added). While the 1980 Decree 
does contain boilerplate language to the effect that: “ [t]he 
court retains jurisdiction of this action for such further 
orders as may be necessary or appropriate to effectuate 
the purposes of this decree” (Pet. A. 69), this “ retain[ed] 
jurisdiction” is limited by the terms of respondents’ waiv­
ers. As the 1980 Decree left intact the operation of the 
city-wide seniority system and did not otherwise adversely 
affect the rights of its members the Union did not voice 
objections to the entry of the decree.4

The record reflects that the total number of blacks 
hired in the Fire Department between the entry of the 
1974 Decree and May, 1981 (including rehires) reached 
the level of fifty-six percent, thus exceeding the City’s in­
terim goals (J.A. 48). While the Justice Department had 
retained the option of establishing specific numerical 
ratios for the employment of black firefighters had the 
City failed in its good-faith attempts to meet the interim 
goals established by the 1974 Decree (J.A. 105-06), this 
option was not exercised due to the City’s success in this 
regard. In May, 1981, following that history of compli­
ance with the terms of the 1974 and 1980 Decrees, the 
city administration announced that layoffs of municipal 
employees would be necessitated due to an anticipated 
budget deficit in the upcoming fiscal year. The respond­
ents stipulated at the hearing on respondents’ motion for 
injunctive relief, discussed i?ifra, to the City’s financial

4 The factual exposition, in the opinion of the Court of Appeals 
includes a discussion of certain objections raised to the entry of 
the 1980 Decree by a group of 11 nonminority firefighters, (Pet. 
A. 6-8). This group’s attempted intervention is treated more fully 
in Orders v. Stotts, 679 F.2d 579 (6th Cir.), cert, denied, 103 S.Ct. 
297 (1982). The Union did not participate in this intervention at­
tempt. The discussion by the Court of Appeals of the Orders inter­
veners’ objections to the 1980 Decree (Pet. A. 26-30) is not perti­
nent to the instant controversy.



7

need to implement layoffs (J.A. 75). In anticipation of 
the layoffs, the City promulgated a formal layoff policy 
which addressed all aspects o f the anticipated layoffs 
(J.A. 82-96). The layoff policy reaffirmed the City’s 
obligation to lay off Fire Department personnel, if neces­
sary, in conformance with the city-wide seniority system. 
Neither by its promulgation of the layoff policy nor in 
any other way did the City announce its intention to re­
nounce or repudiate its commitment to the eventual 
achievement of the long-term goals agreed to in the 1974 
and 1980 Decrees.

On May 4, 1981, the respondents applied for and ob­
tained a temporary restraining order enjoining the City 
from laying off or reducing in rank any black fire employ­
ees (J.A. 20-23). Respondents contended that the routine 
application of the city-wide seniority system would “effec­
tively destroy the affirmative relief” granted by the 1980 
Decree (J.A. 21). The United States Department of Jus­
tice neither joined respondents’ petition nor sought simi­
lar relief in its parallel action.

On May 5, 1981, the District Court permitted the 
Union to intervene (J.A. 24). The Union intervened in 
order to assert the rights and interests of its members in 
the impending layoffs and reductions in rank (J.A. 24). 
The order allowing the Union’s intervention was entered 
with the consent of all parties. This intervention marked 
the first occasion that the Union had sought to assert an 
interest in these actions.

On May 8, 1981, the District Court held an evidentiary 
hearing on the respondents’ request for a preliminary in­
junction (Pet. A. 72-76; J.A. 29-119). Following the 
hearing, the District Court found that the 1980 Decree 
did not address layoffs or the method to be used in the 
event that layoffs or reductions in rank became necessary



8

(Pet, A. 73, 77-78).5 Further, the Court found that the 
City’s layoff policy was not adopted with the purpose or 
intent to discriminate on the basis of race,8 but concluded 
that the application of the city-wide seniority policy would 
have a discriminatory effect.6 7 The District Court found 
the city-wide seniority system to be non-bona fide due to 
this discriminatory effect.8

The District Court held that it possessed the authority 
to modify the 1980 Decree. It did so by enjoining the 
City from implementing the city-wide seniority system 
insofar as it would decrease the percentage of minority

6 The District Court found that the 1980 Decree did not contem­
plate the circumstances that layoffs might be occasioned by fiscal 
difficulties, as layoffs, were unprecedented in the City’s recent his­
tory (Pet. A. 73). While the Court of Appeals characterizes the 
District Court’s finding to be that there existed “changed” circum­
stances (Pet. A. 8, passim), the District Court did not go so far in 
its findings. Indeed, the appearance of the clause in the Union’s 
Memorandum of Understanding providing for seniority-based lay­
offs as early as 1975 (Pet. A. 81) makes it clear that the City’s 
layoff decision was not a “changed circumstance”  and could have 
been anticipated when the 1980 Decree was entered in April of 1980.

8 This finding supports the legal conclusion that the city-wide 
seniority system was bona fide in nature as routinely applied in the 
layoff situation. Teamsters v. United States, 431 U.S. 324, 356 
(1977). This finding, as noted by the Court of Appeals, has not 
been, challenged on. appeal (Pet. A. 11 n.6).

7 The statistics relied upon by the District; Court (Pet. A. 9, 70- 
71) are; not indicative of post-Act (post March 24, 1972) discrimi­
nation or of violations by the City of the terms of the 1974 and 
1980 Decrees. As promotional goals, were not adopted in the Fire 
Division via the 1974 Decree (J.A. 107, ([ 15), the table of promo­
tional statistics, contained in the Court of Appeals opinion (Pet. 
A. 9 n.5) is not indicative of a violation of either the 1974 or 1980 
Decrees. In fact, the District Court concluded that the City had 
not been defiant, or contemptuous (Pet. A. 75).

8 The legal conclusion of the District Court that the city-wide 
seniority system was non-bona fide was set aside properly as error 
by the Court of Appeals (Pet. A. 11 n.6).



9

employees within four classifications in the Fire Depart­
ment (Pet. A. 77-79).9 The District Court ordered the 
City to propose a layoff method consistent with its in­
junction (Pet. A. 79).

Judgment on the District Court’s ruling was entered 
on May 18, 1981 (Pet. A. 77). Petitioners noticed their 
appeals (J.A. 5) and moved to stay the District Court’s 
injunction pending appeal (J.A. 120-22). The motion 
was denied by the District Court (J.A. 122-23), as were 
similar motions made to the Court of Appeals by petition­
ers (Pet. A. 12). The appeals wTere advanced on the cal­
endar of the Court of Appeals for oral argument and ex­
pedited consideration on September 15, 1981. The opinion 
of the Court of Appeals, however, was not filed until 
May 7, 1982, one year after the hearing before the Dis­
trict Court.

The Court of Appeals affirmed the result below. Al­
though overruling the reasoning of the District Court 
with regard to the bona tides of the city-wide seniority 
system,10 the Court of Appeals concluded that the District 
Court had the authority to modify the 1980 Decree upon 
a showing of changed circumstances. The Court of Ap­
peals also concluded that the interests of the Union in the 
continued application of the city-wide seniority system 
presented no impediment to such a modification. The 
judgment of the Court of Appeals was filed on May 7, 
1982 (J.A. 141-42). The Union’s petition for certiorari 
was timely filed with the Court on August 4, 1982, and 
a writ of certiorari was granted on June 6, 1983.11

9 Following a second hearing before the District Court on June 23, 
1981 (J.A. 125-37), the preliminary injunction was expanded to 
include three additional classifications not represented by the Union 
(City Pet. A. 82-83).

10 See note 8, supra.
11 The City also applied for a writ of certiorari which was granted 

by the Court and consolidated for review with the Union’s petition. 
Memphis Fire Dep’t v. Stotts, 679 F.2d 541 (6th Cir. 1982), cert, 
granted, 103 S.Ct. 2451 (1983) (No. 82-229).



SUMMARY OF ARGUMENT

10

The orders in dispute impermissibly modified a con­
sent decree that had been entered in a promotional dis­
crimination case by enjoining the employer’s routine ap­
plication of a seniority system to determine the order of 
layoffs of municipal employees and by requiring the em­
ployer to maintain the racial balance then existing in 
each affected job classification. In doing so, the District 
Court reached outside the “ four corners” of the consent 
decree to impose a new provision allegedly to implement 
its “purposes” in violation of the principles expressed by 
the Court in United States v. Armour & Co., 402 U.S. 
673 (1971). The lower courts reached this result de­
spite: (1) the absence of an adjudicated or admitted
violation of the law on the part of the parties affected 
thereby, (2) the express waiver of additional relief con­
tained in the consent decree itself and (3) the lack of 
an ambiguity in the consent decree. Under these circum­
stances, there was no basis for the imposition of a new 
term or provision in the decree.

The lower courts exceeded their authority in modify­
ing the consent decree. Due to the strong interests in 
the finality of judgments, such a modification is permis­
sible only where changed circumstances have transformed 
the original decree into an “ instrument of wrong.” 
United States v. Swift & Co., 286 U.S. 106, 115 (1932). 
The circumstances surrounding the municipal layoffs at 
issue were not “ changed” circumstances as would justify 
modification. Neither are the consequences of the routine 
application of a bona fide seniority system “wrong” in 
nature under Title VII of the Civil Rights Act of 1964, 
the statute which the lower courts sought to enforce. 
See 42 U.S.C. § 2000e-2 (h ). Teamsters v. United States, 
431 U.S. 324 (1977).

Rather, the modification imposed by the lower courts is 
itself “wrong,” as it impermissibly: (1) trammels the
interests of innocent nonminority incumbents to main­



11

tain racial balance in favor of persons who had not es­
tablished “ victim” status, (2) imposes a new duty on 
petitioners in the absence of proper judicial proceedings 
and (3) disregards the waiver of further relief that was 
made by respondents. In addition, the orders below would 
foster uncertainties regarding the finality of Title VII 
settlements that would make the chances of future set­
tlements much less likely.

The orders imposing the nonconsentual modification of 
the consent decree had the effect of imposing involuntary 
class-based relief which contravenes the directives of the 
statutes that the lower courts sought to enforce. The 
consent decree at issue neither constitutes an adjudica­
tion nor an admission of a violation of the law on the part 
of petitioners. Thus, the lower courts impermissibly im­
posed substantial additional relief in the absence of a 
proven or admitted violation of the law and despite re­
spondents’ express waiver of such relief.

The orders below were outside the scope of the reme­
dial authority under the statutes which respondents 
sought to enforce. Those statutes specifically limit the 
scope of permissible relief to making whole the “ victims” 
of racial discrimination. See Franks v. Bowman Trans­
portation Co., 424 U.S. 747 (1976) ; Milliken v. Bradley, 
418 U.S. 717 (1974). Rather than granting relief to 
individual “victims,” the relief ordered by the District 
Court imposed a class-based quota remedy in contraven­
tion of Title VII and its clear legislative history. In­
nocent nonminority incumbents were displaced inequi­
tably. The disputed orders constitute an abuse of dis­
cretion, requiring reversal.

Finally, the lower courts disregarded the congressional 
policy expressed in Title VII protecting routine applica­
tion of a last-hired, first-fired seniority system. The or­
ders below abrogated the routine operation of a bona fide 
seniority system to impose a preference based on race. 
In conferring “constructive” or “ fictional” competitive



12

seniority to junior black employees who had not demanded 
such relief in the complaints or established their entitle­
ment to such relief, the lower courts inequitably dis­
placed more senior nonminority incumbents who are in­
nocent of any wrongdoing. These black employees prof­
fered no entitlement to preferential treatment other than 
their race. The resulting orders run contrary to the 
congressional directives embodied in §§ 703(h) and 703 
(j) of Title VII.

ARGUMENT
I. THE; MODIFICATION OF THE: CONSENT DECREE 

HEREIN TO IMPOSE A SUBSTANTIAL NEW PRO­
VISION IN THE ABSENCE OF AN ADJUDICATED 
VIOLATION OF THE LAW CONTRAVENES FUN­
DAMENTAL PRINCIPLES GOVERNING JUDICIAL 
INTERPRETATION AND ADMINISTRATION OF 
CONSENT DECREES.

A. Consent Decrees Must Be Construed Within Their 
“ Four Corners.”

The District Court modified a consent decree to im­
pose a substantial new term affecting the petitioners. 
This modification was ordered in the absence of any 
adjudication of a violation of the law against petitioners 
or admissions to that effect. The Union submits that 
this modification constitutes clear error which requires 
reversal.

The governing rule of construction, and its rationale, 
were stated plainly and aptly by the Court in United 
States v. Armour & Co., 402 U.S. 673, 681-82 (1971) :

Consent decrees are entered into by parties to a case 
after careful negotiation has produced agreement on 
their precise terms. The parties waive their right to 
litigate the issues involved in the case and thus save 
themselves the time, expense, and inevitable risk of 
litigation. Naturally, the agreement reached nor­
mally embodies a compromise; in exchange for the 
saving of cost and elimination of risk, the parties



13

each give up something they might have won had 
they proceeded with litigation. Thus the decree itself 
cannot be said to have a purpose; rather the parties 
have purposes, generally opposed to each other, and 
the resultant decree embodies as much of those op­
posing purposes as the respective parties have the 
bargaining power and skill to achieve. For these 
reasons, the scope of a consent decree must be dis­
cerned within its four corners, and not by reference 
to what might satisfy the purposes of one of the par­
ties to it. Because the defendant has, by the decree, 
waived his right to litigate the issues raised, a right 
guaranteed to him by the Due Process Clause, the 
conditions upon which he has given that waiver must 
be respected, and the instrument must be construed 
as it is written, and not as it might have been writ­
ten had the plaintiff established his factual claims 
and legal theories in litigation.

(Emphasis added; footnote omitted.) See also United 
States v. Atlantic Refining Co., 360 U.S. 19 (1959) ; 
Hughes v. United States, 342 U.S. 353 (1952).

Despite its citations to Armour (Pet. A. 23-24), the 
Court, of Appeals failed to apply its substance. The Dis­
trict Court determined that the proposed layoffs and der 
motions under consideration were a circumstance “not 
provided for in the text of the decree” (Pet. A. 8, 73).1:2 
Neither respondents nor the Court of Appeals has chal­
lenged this determination. It is manifest that the lower 
courts have reached outside the “ four corners” of the 
1980 Decree to impose a new obligation not agreed to by 
the City in contravention of the principles stated in 
Armour.

1:2 The Court of Appeals argues that the District Court “properly 
recognized” that the respondents did not seek to. modify the decrees, 
but merely sought to. “compel compliance with the terms and goals 
of the decrees” (Pet. A. 33). The determination of the; District 
Court referred to in the text demonstrates that this argument is 
without merit. It is beyond cavil that the respondents sought relief 
other than that expressly conferred by the language of the 1980 
Decree.



14

Rather than mandating the result decreed by the courts 
below, a reading of the “ four corners”  of the 1980 Decree 
requires that the City’s seniority system, as implemented 
through the proposed layoff policy, should have been ap­
plied. As no provision of the 1980 Decree addressed the 
City’s layoff policies and procedures or prohibited the 
City’s proposed layoffs and reductions in rank by senior­
ity, the District Court’s injunction against such action 
constituted additional affirmative relief beyond that pro­
vided in the 1980 Decree. Further, the 1980 Decree con­
tains respondents’ express agreement to “seek no- further 
relief . . . save to enforce the provisions of this Decree, 
thereby xoaiving the right to seek further relief’ (em­
phasis added). The plain language of this waiver un­
mistakably precludes respondents from seeking a modifi­
cation even if adequate grounds for such a modification 
might have existed otherwise.

Rather than limiting itself to an analysis of the “ four 
corners” of the 1980 Decree, the Court of Appeals im­
permissibly resorts to an interpretation of the purposes 
and motivations of the 1974 and 1980 Decrees (Pet. A. 
2, 3, 25, 36). This approach, as noted in Armour, im­
permissibly invites consideration of how the decree might 
have been written had the respondents established their 
factual claims and legal theories in litigation. Armour, 
402 U.S. at 682. By departing from the “ four corners” 
of the 1980 Decree, the Court of Appeals exceeded its 
authority.

B. In Interpreting a Consent Decree, the Court May 
Not Consider Extrinsic Evidence Except To Resolve 
an Ambiguity in the Terms of the Agreement.

The Armour “ four corners” rule is consistent with the 
ordinary principle of contract construction that resort to 
extrinsic evidence is permissible only when the decree 
itself is ambiguous. See Fox v. United States Depart­
ment of Housing and Urban Development, 680 F.2d 315, 
319 (3d Cir. 1982). Otherwise, as Armour teaches, inter­



15

probation of a consent decree is normally a question of 
law based upon the instrument itself.

As noted above, the District Court determined that the 
proposed layoffs and demotions were not provided for in 
the text of the decree (Pet. A. 8, 73).13 As the 1974 and 
1980 Decrees were silent in regard to layoffs, there is 
clearly no ambiguity in the decrees that would call for 
reference to extrinsic evidence to aid interpretation. The 
consideration of such evidence by the courts below was 
in error (Pet. A. 9 n.5, 31, 37). As Armour further in­
dicates, the interpretation of a consent decree does not 
rest on the subjective intent of the parties, rather it in­
volves an interpretation of the meaning of the words used 
by the parties. Fox, 680 F.2d at 320. The 1980 Decree 
was silent, as to layoffs. In fact, neither relief from the 
City’s layoff policies nor seniority relief was sought in 
the respondents’ complaints (J.A. 11-12, 17). While the 
1980 Decree was the result of “ intense negotiations” 
(Pet. A. 2), the record does not demonstrate that con­
structive competitive seniority, layoff practices or poli­
cies or the potential for layoffs was considered. Certainly, 
none of the subjects were addressed in the decree itself.

Respondents waived further relief in the face of the 
city-wide seniority policy (J.A. 49), the mention of the 
seniority system in the 1974 Decree (Pet. A. 8; J.A. 103) 
and the explicit applicability of the seniority system to 
layoffs contained in the Union’s Memoranda of Under­
standing with the City (Pet. A. 81; J.A. 119). In light 
of these considerations, the conclusion of the Court of 
Appeals that the potential for seniority-based layoffs by 
the City was an unanticipated change in circumstances 
(Pet. A. 2) is in error. At the very least, it was capable 
of anticipation by respondents. Indeed, it is now clear 
that respondents seek the federal courts to bail them out 
after they failed to complain about and failed to nego­

113 The conclusion of the Court of Appeals to the contrary was in 
error (Pet. A. 33).



16

tiate about layoffs, once confronted by actual layoffs. Re­
spondents actually seek to have the courts rewrite their 
settlement agreement for them after they failed to address 
a subject they now see they should have addressed.

In point of fact, respondents failed to insist to im­
passe, as it were, on the conferral of any constructive 
competitive seniority. The record is quite clear that 
Mayor Wyeth Chandler was opposed adamantly to the 
abrogation of the seniority status of incumbent em­
ployees. As the Mayor testified:

It is my opinion that/under the Consent Decree, we 
agreed to hire, we agreed to promote, and we agreed 
to do it in percentages, or what have you. And be 
fair and equitable, and I felt that that was fair and 
equitable, that I did then agree to it, consented to it.
But I certainly felt differently towards any policy 
that would put people out of work, put them on the 
street, based anything other than on the thing that 
has been used in every city in this country, in every 
business in this country, and by the city, and in the 
Consent Decree since 1974, and that is the seniority 
policy in the union agreement, and everything else.

(J.A. 37-38) Respondents certainly apprehended that 
the terms of the 1980 Decree constituted the best nego­
tiated setlement that could have been exacted from the 
City. Rather than risking the potential for a less favor­
able outcome at trial, respondents accepted a settlement 
that gave them less than what might potentially have 
been gained at trial. Respondents now seek to add to the 
1980 Decree, through judicial modification, relief that 
could not have been gained through negotiation and set­
tlement.

The conclusion is inescapable that respondents have 
not sought enforcement of the terms of the decrees as 
required by Armour. Instead, respondents sought im­
position of an additional term beyond the City’s consent. 
The only prior instance in which this Court has endorsed



17

imposition of new and substantial burdens on a defend­
ant party to a consent decree, United. States. v. United 
Shoe Machinery Co., 391 U.S. 244 (1968) (see discus­
sion in Fox, 680 F.2d at 323), is inapposite due to lack 
of an adjudication of a violation of the law herein to 
support the imposition of such burdens. In the instant 
circumstance, it is impermissible for respondents to draw 
on a consent which, by its very terms, is not available. 
See Ford Motor Co. v. United States, 385 U.S. 303, 322 
(19481. The: City had not agreed to constructive com­
petitive seniority relief or to any relief which affected 
the routine application of its seniority system, as clearly 
stated by Mayor Chandler (J.A. 37-38).

C. Nonconsentual Modification of a Consent Decree 
May Be Allowed Only upon the Establishment of 
a Proper Predicate Absent Herein.

The Court of Appeals framed the principal issue raised 
on appeal in terms of “whether the District Court erred 
in modifying the 1980 Decree to prevent minority em­
ployment from being affected disproportionately by unan­
ticipated layoffs.” (Pet. A. 12) Even if the courts below 
were not limited to an interpretation of the “ four cor­
ners” of the 1980 Decree under Armour,14 those courts 
were still without authority to modify the 1980 Decree to 
afford respondents additional relief beyond the scope of 
that relief conferred by the language of the decree.

Respondents have not sought enforcement of an ex­
isting term of the 1980 Decree, but imposition of an 
additional term beyond the scope of petitioners’ consent. 
There can be no serious contention that petitioners have 
violated the terms of the 1980 Decree (Pet. A. 75). Cf. 
United States v. ITT Continental Baking Co., 420 U.S. 
223 (1975). Neither did the City announce its intention 
to renounce or repudiate its commitment to achieving the

14 The: Union contends that this should be the case for the reasons 
noted above:, particularly in light of the respondents’ express waiver 
of additional relief. (See Pet. A. 61).



IS

long-term goals contained in the 1974 and 1980 Decrees 
as the Court of Appeals intimates (Pet. A. 33). Thus, 
the Court must determine whether, in the absence of an 
adjudication of a violation of the law or a showing of a 
violation of the terms of the decree, the lower courts have 
the authority to modify the 1980 Decree to impose a new 
term not previously agreed to by the petitioners.

The standard for reopening a consent decree is a strict 
one; the: relief is extraordinary and may be granted only 
upon a showing of exceptional circumstances. Fox, 680 
F.2d at 322. There are strong interests in the finality of 
the judgment of the District Court as embodied in the 
1980 Decree. In fact, when the respondents have made 
“a free, calculated and deliberate choice to submit to an 
agreed upon decree rather than seek a more favorable 
litigated judgment their burden . . .  is perhaps even 
more formidable than had they litigated and lost.”  Id. 
Respondents failed to carry their burden and should not 
have been granted a modification.

While courts exercising their equitable jurisdiction are 
not powerless to alter the terms of a prospectively operat­
ing consent decree, this power must only be exercised 
with circumspection. Modification must not be allowed 
unless changed circumstances have transformed the origi­
nal decree into an “ instrument of wrong.” United States 
v. Swift & Co., 286 U.S. 106, 115 (1932). Nothing less 
than a “ clear showing of grievous wrong evoked by new 
and unforeseen conditions” should lead a court to change 
or modify the terms of the original decree. Id. at 119. 
The Court of Appeals justified its affirmance of the Dis­
trict Court on the basis that the 1980 Decree had been 
transformed into an “ instrument of wrong” by new and 
unforeseen circumstances constituting a “ fundamental 
change in the essential facts upon which the decree 
[was] based” (Pet. A. 34-37). The Union takes excep­
tion to this conclusion and the premises on which it is 
based.



19

The essential facts upon which the 1980 Decree was 
based, that the respondent class was involved in an 
employer-employee relationship in a circumstance in which 
city-wide seniority was a relevant factor in certain job 
decisions, including potential layoffs, had, in fact, not 
changed as a result of intervening circumstances since 
the entry of the 1980 Decree. Nor had the City aban­
doned or repudiated the long-term goal agreed to in the 
1980 Decree, as the Court of Appeals suggests (see Pet. 
A. 33). Neither were the lower courts justified in their 
conclusion that the potential for layoffs was unforeseen. 
The record is clear that the City and the Union antici­
pated the potential for layoffs as early as 1975 when 
the following language was included in their Memoran­
dum of Understanding:

Layoff— In the event it becomes necessary to reduce 
the Fire Division, seniority alphabetically shall gov­
ern lay-offs and recalls. Employees lowest in senior­
ity shall be laid off first and shall be the last to be 
recalled.

(Pet. A. 81, J.A. 115). The fact that respondents failed 
to anticipate the potential for future layoffs when they 
acceded to a waiver of further relief in the 1980 Decree 
does not justify a finding that the potential for layoffs 
was unforeseen or unforeseeable in the instant case.

The prospects for layoffs and reductions in force in 
the City of Memphis Fire Division must also be viewed 
in light of the instances of such layoffs in other munici­
palities in the relevant period. A survey of 100 cities 
conducted in November, 1981 by the U.S. Conference of 
Mayors indicated that 72 of those cities surveyed had 
laid off employees or were expecting to lay off employees 
in the near future. Bureau of National Affairs, Layoffs, 
RIFs and EEO in the Public Sector, Fair Employment 
Practices Supplement 439, February 13, 1982, p. 23-24. 
Similar layoffs had previously arisen within the juris­
diction of the Sixth Circuit in Cincinnati, Ohio in 1976,



20

Youngblood v. Dalzell, 568 F.2d 506 (6th Cir. 1978), and 
in Toledo, Ohio in 1980, Brown v. Neeb, 644 F.2d 551 
(6th Cir. 1981).

The Union also challenges the Court of Appeals’ as­
sertion that the 1980 Decree had been transformed into 
an “ instrument of wrong.” The “wrong” complained of 
is that the 1980 Decree, if not modified, would permit 
the application of the city-wide seniority system in deter­
mining the order of layoffs and reductions in rank. The 
routine application of the city-wide seniority system would 
have had the effect of temporarily reducing the percentage 
of blacks in the affected job classifications.15 The Court 
of Appeals’ value judgment that the routine application 
of the city-wide seniority system constituted a “wrong” 
ignores the clear statement of congressional policy em­
bodied in § 703(h) of the Civil Rights Act of 1964. Sec­
tion 703(h) clearly stands for the; proposition that, the 
routine application of a bona fide seniority system is not 
a. “wrong.” Since a district court’s authority to adopt a 
consent decree arises only from the statute the decree is 
intended to enforce, System Federation No. 91 v. Wright, 
364 U.S. 642, 651 (1961), its authority to modify a de­
cree enforcing such a statute can only be exercised in 
light of the policies of the statute.

In the area of employment discrimination, the routine 
application of systems of competitive seniority which 
have been created or operated without a racially dis­
criminatory purpose has been immunized from the statu­
tory proscriptions against employment practices which, 
although neutral on their face and in intent, nonetheless 
discriminate in effect against a particular group. Team­
sters v. United States, 431 U.S. 324, 348-54 (1977). 16

16 Mayor Wyeth Chandler testified that the effects o f the layoffs 
and reductions in rank were anticipated to be temporary in nature, 
for example that lieutenants who were bumped down would be back 
“ in rank’’ within a. six-month to two'-year period (J.A. 39).



21

Section 703(h) of the Civil Rights Act of 1964, 42 
U.S.C. § 2000e-2 (h) , specifically provides:

Notwithstanding any other provision of this sub­
chapter, it shall not be an unlawful employment prac­
tice for an employer to apply different standards of 
compensation, or different terms, conditions, or privi­
leges of employment pursuant to a bona fide senior­
ity . .  . system, . . . provided that such differences 
are not the result of an intention to discriminate be­
cause of race . . .  or national origin, . . .

As this Court concluded in Teamsters, “ the unmistak­
able purpose of § 703(h) was to make clear that the rou­
tine application of a bona fide seniority system would 
not be unlawful under Title VII.” 431 U.S. at 352. In 
so holding, the Court acknowledged that the longest ten­
ure employees, even though they might without excep­
tion be white, would enjoy a “ ‘disproportionate distribu­
tion of advantages [which] in a very real sense [would] 
operate to ‘freeze’ the status quo of prior discriminatory 
employment practices.’ ” 431 U.S. at 350. Nevertheless, 
this Court recognized that this perpetuation effect could 
not overcome “ the congressional judgment . . . that Title 
VII should not outlaw the use of existing seniority lists 
and thereby destroy or water down the vested seniority 
rights of employees. . . .” 431 U.S. at 353.

The city-wide seniority system in this case was adopted 
as an employment policy of the City of Memphis in 1973 
(J.A. 49), and has been present in the City’s Memoranda 
of Understanding with the Union since 1975 (Pet. A. 80- 
81; J.A. 49, 116-19). Respondents have at no time 
mounted any challenge to the genesis or operation of 
this system. The system is clearly neutral and nondis- 
criminatory. Its continued operation is therefore correct 
and proper under Title VII, even though it may perpetuate 
the effects of past discrimination by the employer.1'6 16

16 The seniority system is valid under both the United States 
Constitution and 42 U.S.C. § 1981 absent a showing of discrimina­



22

The Court of Appeals chose to ignore the clear con­
gressional statement of policy and to impose on the par­
ties its own opinion concerning the “wrongness” of the 
routine application of the city-wide seniority policy to 
layoffs. In fact, the modification of the 1980 Decree re­
sulted in a “wrong” inflicted on innocent nonminority 
incumbents who lost their rank and their jobs as a re­
sult of the modification. To the extent that these incum­
bents were so affected, the lower courts impermissibly 
“ trammel [ed] the interests of the white employees” and 
sought to “ maintain racial balance”  at the expense of 
innocent nonminority incumbents. Cf. United Steelwork­
ers of America v. Weber, 443 U.S. 193, 208 (1979), reh’g 
denied, 444 U.S. 889 (1980).17

It is important to note that the question for decision 
in this case is whether the 1980 Decree should have been

tory purpose in its inception or operation. See Washington v. Davis, 
426 U.S. 229 (1976) (Fourteenth Amendment); General Bldg. Con­
tractors Ass’n, Inc. v. Pennsylvania, 102 S.Ct. 3141 (1982) (§ 1981).

Title VII was made applicable to the City by the Equal Employ­
ment Opportunity Act of 1972 (Pub. L. 92-261, Mar. 24, 1972). 
Thus, any discriminatory practices on the part of the City predating 
March 24, 1972 would not have been actionable under Title VII. In 
this case, the! relevant time period for actionable discrimination 
dates back only to February 23, 1975, 180 days prior to Mr. Stotts’ 
charge filed before the EEOC. Pursuant to 42 U.S.C. §§ 1981 and 
1983, respondents could only seek a remedy for intentional discrimi­
nation, General Bldg. Contractors Ass’n v. Pennsylvania, 102 S.Ct. 
3141 (1982) ; Washington v. Davis, 426 U.S. 229 (1976), that took 
place within one year of the filing of the original complaint herein 
on February 16, 1977 (J.A. 1, 8).

17 As a result, the class-based relief imposed upon petitioners by 
the lower courts in order to maintain the percentage of blacks in 
each job classification exceeds even that relief to: which the City 
and respondents might have permissibly consented. See Weber, 443 
U.S. at 208. The Court of Appeals acknowledged that the terms of 
the decree cannot require the discharge o f nonminority workers and 
their replacement with minorities (Pet. A. 16). It is quite peculiar 
that the Court of Appeals would conclude that a consent decree 
could be modified after the fact to provide relief that would have 
been impermissible if contained in the decree as originally drafted.



23

modified to impose a duty that was not contained therein, 
and not, as in Swift, whether the defendant should be 
released from the obligations imposed by the decree. The 
instances in which such a result has been approved by 
this Court in prior cases have been limited to those 
circumstances in which the decree was entered after an 
adjudication or an admission of a violation of the law 
on the part of the defendant party to the decree. See 
Fox, 680 F.2d at 323. Both the 1974 and 1980 Decrees 
contained nonadmissions clauses (Pet. A. 60; J.A. 99). 
The 1974 Decree provided that it “ shall not constitute 
an adjudication or admission by the City of any violation 
of law or findings on the merits of this case” (J.A. 99). 
Where there has been no adjudication or admission of a 
violation of the law, as in this case, the proper predicate 
does not exist for the imposition of additional relief with­
out the consent of the parties affected thereby. See United 
States v. Atlantic Refining Corp., 360 U.S. 19, 23 (1959) ; 
Hughes v. United States, 342 U.S. 353, 357-58 (1952) ; 
Fox, 680 F.2d at 323. As the consent decrees involved 
herein were entered without an admission or an adjudi­
cation of a violation of the law and without fact findings 
that would support the imposition of further relief, the 
proper predicate did not exist for the nonconsentual mod­
ification of the 1980 Decree over petitioners’ objections.

Apparently, the Court of Appeals acknowledged the 
need for an admission of a violation to support the im­
position of additional relief. To find an admission, the 
Court of Appeals would stretch the City’s disclaimer of 
wrongdoing beyond recognition and into an admission of 
wrongdoing:

In the context of consent decrees providing affirma­
tive action relief, we interpret the disclaimer of 
wrongdoing to be an admission that there is a statis­
tical disparity which the defendants cannot unequiv­
ocally explain, together with a reservation of the 
right to attempt to explain it at any other time.



24

(Pet. A. 15 n.10) (Citations omitted) Such an inter­
pretation of a disclaimer of wrongdoing, if allowed to 
stand, would have a serious negative impact upon the 
potential for future settlement of Title VII litigation.

Even if under some “ exceptional” circumstances a 
court might have the authority to modify a consent decree 
over the objection of defendant parties thereto or impose 
new obligations in the absence of an admission or ad­
judication of a violation of the law, such exceptional cir­
cumstances do not exist herein. Viewed in their best 
light, respondents’ contention is that their expectations 
would have been frustrated by the seniority-based lay­
offs caused by fiscal circumstances beyond the control of 
the City that might have been anticipated by respondents 
and addressed in negotiations with the City. Such a cir­
cumstance does not constitute an “ exceptional” circum­
stance. Accord Fox, 680 F.2d at 323. The municipal lay­
offs in this case was a possibility that respondents should 
have considered or anticipated for the reasons detailed 
above. Also, the petitioners had not been guilty of mis­
conduct that might have made equitable the imposition 
of involuntary duties without a prior adjudication.18

Rather than demonstrating the existence of exceptional 
circumstances which might make equitable the reopening 
of the 1980 Decree to provide further relief to respond­
ents, the record establishes that the modification was 
inequitable. Respondents waived their entitlement to fur­
ther relief beyond that granted by the strict terms of the 
1980 Decree (Pet. A. 61). To impose additional duties 
under the 1980 Decree is to disregard the basic rights of

18 Despite the Court of Appeals’ citations to Brown v. Neeb, that 
case is distinguishable from this case. Unlike Brotvn, the City is not 
an adjudicated discriminator, as was the City of Toledo. See 644 
F.2d at 553. Respondents could not establish that the City had 
been recalcitrant in its compliance with the obligations imposed by 
the 1974 and 1980 Decrees. Unlike Brown, the City had approached 
or exceeded its hiring goals (J.A. 48). It was not established that 
the City had been defiant or contemptuous (Pet. A. 74-75).



petitioners who waived their right to litigate defenses by 
consenting to have a decree entered against them. The 
conditions upon which rights are waived must be re­
spected. Armour, 402 U.S. at 682.

The Court of Appeals’ analysis would subject parties 
to a consent decree to a virtually unlimited power of 
modification by district courts whose lodestar would be 
their determination of what the parties would have 
agreed to on a certain issue if, indeed, they had thought 
about it. Rather than encouraging compromise and set­
tlement, this approach fosters uncertainties that reduce 
the incentive of employers and unions to settle employ­
ment discrimination litigation and increases the likeli­
hood of challenges from concerned third parties, particu­
larly labor unions in cases in which they are not parties. 
Thus, the Court of Appeals’ analysis actually makes the 
chances of settlement in an employment discrimination 
case much less likely due to remaining uncertainties as 
to what changes a district court could make in the decree 
in the future.

IL THE INVOLUNTARY CLASS-BASED RELIEF 
GRANTED BELOW CONTRAVENES THE STAT­
UTES THE COURTS SOUGHT TO ENFORCE.
A. The Order of the District Court Granted Relief in 

Addition to that Sought in the Complaint and 
Granted in the Decrees Without Establishing Peti­
tioners’ Liability or Respondents’ Entitlement to the 
Relief.

By the 1974 Decree, the City agreed to a long-term 
goal of “ achieving throughout the work force proportions 
of black and female employees in each job classification, 
approximating their respective proportions in the civilian 
work force.” (J.A. 101) To achieve this goal, the City 
agreed to interim hiring goals in entry level positions 
(Pet. A. 63-65; J.A. 101). The 1980 Decree supplemented 
this relief previously agreed to by providing promotional 
goals (Pet. A. 65-66) and monetary relief in the form of 
backpay (Pet. A. 66).

25



26

The 1980 Decree recites that respondents had brought 
actions against the City alleging violations of Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et 
seq., as amended and made applicable to the City by the 
Equal Employment Opportunity Act of 1972 and 42 
U.S.C. §§ 1981 and 1983. The City, however, did not ad­
mit to having violated the law by discriminating on the 
basis of race or sex in its employment practices (Pet. A. 
60), nor had a violation of the law been adjudicated or 
admitted by petitioners in any other context (see J.A. 
99). Neither decree endeavored to identify particular 
victims as being actual victims of discrimination.

By the nonconsentual modification of the 1980 Decree, 
the lower courts exceeded their remedial authority. As 
pointed out in Part I, supra, the lower courts could not 
draw their authority to modify the 1980 Decree from its 
terms. In addition, the record before the District Court 
is insufficient to support the relief ordered herein under 
the applicable statutes.

The relief imposed upon the petitioners modified the 
1980 Decree to forbid the City from applying the city­
wide seniority policy “ insofar as it will decrease the per­
centage of black [firefighters in certain job classifica­
tions] that are presently employed in the Memphis Fire 
Department.” (Pet. A. 78, City Pet. A. 80, 83) As a re­
sult of these orders, the City was required to lay off and 
reduce in rank more senior incumbent nonminority em­
ployees to maintain the precise racial balance previously 
existing in each job classification affected by the order.

The first infirmity of the judicially imposed modifica­
tions is that those orders afford respondents substantial 
relief in the absence of a proven violation of the law. The 
orders below bypass the “ liability” phase of litigation and 
enter the remedial phase without the support of a proven 
finding of discrimination on the part of petitioners.18 19

19 See D. Dobbs, Handbook on the Law of Remedies, § 1.1 (1973). 
The law of judicial remedies concerns itself with the nature and 
scope of the relief to be given a plaintiff once he has followed



27

As the 1980 Decree was not grounded on findings of 
discrimination against petitioners, no further relief was 
appropriate beyond that originally granted in the decree 
itself, particularly in view of respondents’ express waiver 
of further relief (Pet. A. 61). Even if the proof sub­
mitted to the District Court at the preliminary injunction 
hearing was adequate to raise some inference of discrim­
ination, respondents had additionally “waive [d] a hearing 
and findings of fact and conclusions of law on all issues 
raised by the complaints.” (Pet. A. 60)20 Thus, even if 
the respondents had prayed for constructive competitive 
seniority in their complaints, which they did not, that 
potential relief was lost at the time the 1980 Decree was 
entered.

appropriate procedure in court and has established a substan­
tive right (Emphasis added).

In accordance with these principles, this Court has observed that 
district courts must limit nonconsentual relief to circumstances in 
which an illegal discriminatory act or practice is proven or found. 
See Franks v. Bowman Transp. Co., 424 U.S. 747, 758 (1976).

20 After the City articulated its reasons for implementing 
seniority-based layoffs (see, e.g., J.A. 37-38, 43-44), the ultimate 
burden of persuasion remained with respondents. As the Court 
explained in. Ford Motor Co. v. EEOC, 102 S.Ct. 3057 (1982) :

In Burdine we reiterated that after a plaintiff has proved a 
prima, facie case of discrimination, “the burden shifts to the 
defendant ‘to articulate some legitimate;, nondiscriminatory rea­
son for the employee’s rejection.’ ”  The “ultimate burden of 
persuading the trier of fact that the defendant intentionally 
discriminated against the plaintiff remains at all times with 
the plaintiff.”  It was then made clear that:
“ The defendant need not persuade the Court that it was ac­
tually motivated by the proffered reasons. . . .  It is sufficient if 
the defendant’s evidence raises a genuine issue of fact as to 
whether it discriminated against the plaintiff.”

Id. at 3062 n.7 (citations omitted; emphasis added). The courts 
below ignored this, method of analysis and implemented a remedy 
without a supporting finding of discrimination.



28

B. A Court May Not, in Order To Achieve a Particular 
Racial Balance, Direct that Innocent Incumbent 
Employees Be Deprived of Their Jobs so that Those 
Jobs May Be Filled by Persons of Another Race 
Who Have Not Been Adjudicated as Victims of 
Unlawful Discrimination.

Even if the initial infirmity, lack of a proven violation 
of the law, was not present, the Union submits that the 
orders of the lower courts must be reversed as being be­
yond the scope of the District Court’s remedial authority. 
As set forth above, respondents sought relief in their com­
plaints for alleged violations of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., as 
amended by the Equal Employment Opportunity Act of 
1972 and 42 U.S.C. §§ 1981 and 1983. While violations 
of these statutes have not been proven against petitioners, 
these statutes provided the basis for any relief to which 
respondents might have been entitled, even had these cases 
been fully litigated.

Where private litigants assert claims arising under 
federal statutes, federal courts may exercise their juris­
diction to fashion relief only to the extent consistent with 
the applicable statute. See System Federation No. 91, 
364 U.S. at 651. When the authority of the federal courts 
derives from an act of Congress, substantive rights sim­
ply do not exist if they are not created by the statute. 
“ [I]n our constitutional system, the commitment to the 
separation of powers is too fundamental for [the courts] 
to pre-empt congressional action by judicially decreeing 
what accords with ‘common sense and the public will.’ ” 
TV A v. Hill, 437 U.S. 153, 195 (1978).21

21 Title VII, of course, epitomizes Congress’ formulation of public 
policy. When Congress so acts, it supplants with its own views any 
judicial determination of public policy. Cf. United States v. Atlantic 
Mutual Ins. Co., 343 U.S. 236, 245 (1952) (Frankfurter, J., dissent­
ing). Compare Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946) 
with Northwest Airlines Inc. v. Transport Workers, 451 U.S. 77 
(1981).



29

Thus, the pertinent inquiry is whether Title VII and 
42 U.S.C. §§ 1981 and 1983 authorize the relief afforded 
respondents by the lower courts.22 23 The focus of these 
statutes is to afford protection to individuals, not to mi­
nority groups as a whole.23 It is clear that the relief 
available under §§ 1981 and 1983 is limited to relief to 
actual victims of discrimination. As the Court has stated:

. . .  the remedy is necessarily designed, as all reme­
dies are, to restore the victims of discriminatory con­
duct to the position they would have occupied in the. 
absence of such conduct.

Milliken v. Bradley, 418 U.S. 717, 746 (1974) ( “ Milliken 
I” ) ; see also Milliken v. Bradley, 433 U.S. 267, 281 
(1977) (“ Milliken II” ). Also, the remedies specified un­
der Title VII to rectify illegal employment discrimination 
are consistent with and define the scope of relief avail­
able in the instant context under 42 U.S.C. §§ 1981 and 
1983.

The choice of law provision, 42 U.S.C. § 1988, specifies 
the law to be applied to remedy violations of 42 U.S.C. 
§§ 1981 and 1983. This section provides in pertinent 
part:

The jurisdiction in civil and criminal matters con­
ferred on the district courts by the provisions of this 
Title . . . for the protection of all persons in the 
United States, in their civil rights, and for their

22 The Union, would show that this inquiry is largely academic in 
the absence of a proven violation of these statutes on the part of 
petitioners. No- violation having been found, it was simply beyond 
the power of the District Court to fashion a remedy for a wrong 
that had not been proven.

23 See Connecticut v. Teal, 102 S.Ct. 2525, 2534 (1982) ( “The 
principal focus of [Title VII] is the protection of the individual 
employee, rather than the protection of the minority group as a 
whole. Indeed, the. entire statute and legislative history are replete 
with references to protection for the individual employee. See, e.g.,
§§ 703(a) (1), (b ), ( c )____” ) (Title V II ) ; Shelley v. Kraemer, 334
U.S. 1, 22 (1948) (constitutional violations).



30

vindication, shall be exercised and enforced in con­
formity with the laws of the United States so far as 
such laws are suitable to carry the same into 
effect. . . .

“This means, as we read § 1988, that both federal and 
state rules on damages may be utilized, whichever better 
serves the policies expressed in the federal statutes.” 
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 
(1969). As § 706(g) of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e-5 (g) defines the remedies that 
a court may order upon finding employment discrimina­
tion, application of § 706(g) in providing remedies for 
violations of 42 U.S.C. §§ 1981 and 1983 in the employ­
ment discrimination context best serves the policies ex­
pressed in those federal statutes.

The remedial provision of Title VII, § 706(g), contains 
a limitation in its last sentence that bars the relief pre­
scribed by the lower courts. That sentence reads in per­
tinent part:

No order of the court shall require the . . . reinstate­
ment of an individual as . . .  an employee . . .  if such 
individual . . . was suspended or discharged for any 
reason other than discrimination on account of race, 
color, religion, sex, or national origin. . . .

This section 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., 424 U.S. 747, 764 (1976) 
(footnote omitted) ; accord, Teamsters, 431 U.S. at 364. 
The District Court’s orders in this case are contrary to 
both the language and spirit of this provision.

The District Court’s orders afforded relief to members 
of the respondent class on the basis of their race alone 
without consideration of whether the individual members 
of the class were actual victims of discrimination. Those 
orders explicitly sought to maintain the racial balance



31

then prevailing in each affected job classification (Pet. 
A. 78). Obviously, as no violations of the law had been 
proven against petitioners in regard to the class, no in­
dividuals could claim proven victim status. Instead of 
limiting relief to victims, the District Court ruled that 
the layoffs could only proceed if the respondent class was 
not disproportionately affected thereby. To the extent 
that it did so, the District Court imposed for the first 
time in this litigation strict quotas upon the racial bal­
ance in the work force.

In addition to the plain language of § 706(g), the leg­
islative history of Title VII demonstrates that Congress 
meant to forbid such a result. The opening speech on the 
floor of the House of Representatives in support of the 
Act was delivered by Representative Celler, the Chairman 
of the House Judiciary Committee. A portion of that 
speech was devoted to answering the “unfair and unrea­
sonable criticism” that had been leveled against the bill:

In the event that wholly voluntary settlement proves 
to be impossible, the Commission could seek redress 
in the federal courts, but it would be required to 
prove in the court that the particular employer in­
volved had in fact, discriminated against one or more 
of his employees because of race, religion or national 
origin. . . .
Even then, the court could not order that any pref­
erence be given to any particular race, religion or 
other group but would be limited to ordering an end 
to discrimination [110 Cong. Rec. 1518 (1964)].

Subsequent to the House’s passage of the bill, the Re­
publican sponsors in the House published a memorandum 
describing the bill as passed. In pertinent part, the 
memorandum stated:

Upon conclusion of the trial, the federal court may 
enjoin an employer or labor organization from prac­
ticing further discrimination and may order the hir­
ing or reinstatement of an employee or the accept­



32

ance or reinstatement of a union member. But Ti­
tle VII does not 'permit the ordering of racial quotas 
in business or unions and does not permit interfer­
ences with seniority rights of employees or union 
members. [Id. at 6566; emphasis added].

When the bill was taken up by the Senate, Senators 
Humphrey and Kuchel, the co-managers of the bill, under­
took a description of each of the titles. In the course of 
his description of Title VII, Senator Humphrey detailed 
the manner in which discrimination claims could be proc­
essed through suit and finding of discrimination, and then 
described the remedial powers available to a court:

The relief sought in such a suit would be an injunc­
tion against future acts or practices of discrimina­
tion, but the Court could order appropriate affirma­
tive relief, such as hiring or reinstatement of em­
ployees and payment of backpay. This relief is simi­
lar to that available under the National Labor Rela­
tions Act in connection with the unfair labor prac­
tices, 29 United States Code 160(b). No court order 
can require hiring, reinstatement, admission to mem­
bership, or payment of back pay for anyone who was 
not fired, refused employment or advancement or ad­
mission to a union by an act of discrimination for­
bidden by this title. This is stated expressly in the 
last sentence of section 707(e) [enacted, without 
change, as section 706(g )]. . . .
Contrary to the allegations of some opponents of this 
title, there is nothing in it that will give any power 
to the Commission or to any court to require hiring, 
firing, or promotion of employees in order to meet a 
racial ‘quota’ or to achieve a certain racial balance.
That bugaboo has been brought up a dozen times; but 
is nonexistent. [Id. at 6548; emphasis added]

Senator Kuchel made the other major opening speech in 
support of the bill. He, too, took pains to demonstrate 
that the remedial provisions would not permit court- 
ordered quotas:



33

Title VII might justly be described as a modest step 
forward. Yet it is pictured by its opponents and de­
tractors as an intrusion of numerous federal inspec­
tors into our economic life. Those inspectors would 
presumably dictate to labor unions and their mem­
bers with regard to job' seniority, seniority in ap­
prenticeship programs, racial balance in job classifi­
cations, racial balance in membership, and preferen­
tial advancement for members of so-called minority 
groups. Nothing could be further from the truth. 
I have noted that the Equal Employment Opportu­
nity Commission is empowered merely to investigate 
specific charges of discrimination and attempt to 
mediate or conciliate the dispute. It would have no 
authority to issue orders to anyone. Only a federal 
court could do that, and only after it had been es­
tablished in that court that discrimination because 
of race, religion, or national origin had in fact oc­
curred. Any order issued by the Federal district 
court would of course be subject to appeal. But the 
important point, in response to the scare charges 
which have been widely circulated to local unions 
throughout Amercia, is that the court cannot order 
preferential hiring or promotion consideration for 
any particular race, religion, or other group. Its 
power is solely limited to ordering an end to the dis­
crimination which is in fact occuring. [Id, at 6563; 
emphasis added]

Each day during the Senate debates on the civil rights 
bill, the principal Senate sponsors prepared a bipartisan 
civil rights newsletter which was hand-delivered to the 
office of each senator supporting the bill. Its purpose as 
explained by Senator Humphrey was “ to keep senators 
who are in favor of civil rights legislation informed of 
our point of view.” Id. at 5042. The April 11, 1964 issue 
of the newsletter, published two days after the filibuster 
had begun, declared:

Under title VII, not even a Court, much less the 
Commission, could order racial quotas or the hiring, 
reinstatement, admission to membership or payment



34

of back pay for anyone who is not discriminated 
against in violation of this title. [Id. at 14465; em­
phasis added]

On May 25, Senator Humphrey introduced a brief ex­
planation of the House bill which he said had been “ read 
and approved by the bipartisan floor managers of the bill 
in both houses of Congress.” Id. at 11847. In pertinent 
part, the explanation provided:

The relief available is a court order enjoining the 
offender from engaging further in discriminatory 
practices and directing the offender to take appro­
priate affirmative action; for example, reinstating or 
hiring employees, with or without back pay, . . .
The Title does not provide that any preferential 
treatment in employment shall be given to Negroes 
or to any other persons or groups. It does not pro­
vide that any quota systems may be established to 
maintain racial balance in employment [Id.; empha­
sis added].

The legislative history of the 1964 Act reveals the 
strong intention of its proponents to disclaim any infer­
ence that courts would be empowered by the provisions 
of the Act to render any order that would afford a pref­
erence on the basis of race, impose racial quotas or, in 
short, grant any relief prior to the establishment in court 
that discrimination had, in fact, occurred. These assur­
ances were necessary to ensure passage of the Act. See 
Weber, 443 U.S. at 206.

The only legislative act in the interim since 1964 is the 
passage of the Equal Employment Opportunity Act of 
1972 which amends Title VII in several respects. In 
essence, the 1972 law amends §§ 701, 702 and 704 to 
broaden Title VIPs scope of coverage, and amends §§ 705 
and 706 to grant the EEOC the authority to investigate 
charges and to bring suits in federal court. Section 703 
of Title VII was not amended at all and the only argu­
ably pertinent changes made in 706(g) were the follow­



ing additions to its first sentence (the new language is 
indicated in italics) :

If the court finds that the respondent has intention­
ally engaged in or is intentionally engaging in an 
unlawful employment practice charged in the com­
plaint, the court may enjoin the respondent from en­
gaging in such unlawful employment practice, and 
order such affirmative relief as may be appropriate, 
which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back 
pay (payable by the employer, employment agency, 
or labor organization, as the case may be, responsi­
ble for the unlawful employment practice), or any 
other equitable relief as the court deems appropriate.

The italicized language had its origin in an amend­
ment introduced by Senator Dominick, who was leading 
one faction of a filibuster against the Senate Labor Com­
mittee bill. The most significant aspect of the committee 
bill— and the principal issue causing the filibuster—was 
a proposal to confer “ cease and desist” authority on the 
EEOC; that bill proposed to make no change in either 
§ 703(a) or § 706(g). Adoption of the Dominick amend­
ment, which denied the EEOC independent enforcement 
power and instead empowered the EEOC to institute 
lawsuits in federal court, was the key to ending the fili­
buster. Neither Senator Dominick nor anyone else ex­
plained or even discussed the purpose of the additional 
language in the first sentence of § 706(g), and the only 
explanation therefor is that contained in a section-by­
section analysis prepared by Senator Williams, the Chair­
man of the Labor Committee and the manager of the 
legislation:

Section 706ig )— This subsection is similar to the 
present section 706(g) of the Act. It authorizes the 
court, upon a finding that the respondent has en­
gaged in or is engaging in an unlawful employment 
practice, to enjoin the respondent from such unlaw­
ful conduct and order such affirmative relief as may

35



36

be appropriate including, but not limited to. rein­
statement or hiring, with or without back pay, as 
will effectuate the policies of the Act. Back pay is 
limited to that which accrues from a date not more 
than two years prior to the filing of a charge with 
the Commission. Interim earnings or amounts earn- 
able with reasonable diligence by the aggrieved per­
son (s) would operate to reduce the back pay other­
wise allowable.
The provisions of this subsection are intended to give 
the courts wide discretion exercising their equitable 
powers to fashion the most complete relief possible. 
In dealing with the present section 706(g) the courts 
have stressed that the scope of relief under that sec­
tion of the Act is intended to make the victims of un­
lawful discrimination whole, and that the attainment 
of this objective rests not only upon the elimination 
of the particular unlawful employment practice com­
plained of, but also requires that persons aggrieved 
by the consequences and effects of the unlawful em­
ployment practice be, so far as possible, restored to a 
position where they would have been were it not for 
the unlawful discrimination. [118 Cong. Rec. 7166, 
7168 (1972) ; emphasis added]

As this Court explained in Franks, 424 U.S. at 764 
n.21, the Congress that “added the phrase speaking to 
‘other equitable relief’ in section 706(g) . . . indicated 
that ‘rightful place’ was the intended objective of Title 
VII and the relief accorded thereunder” and, the court 
understood the portion of the seetion-by-section analysis 
quoted above to be “ emphatic confirmation that federal 
courts are empowered to fashion such relief as the par­
ticular circumstances of a case may require to effect 
restitution, making whole insofar as possible the victims 
of racial discrimination. . . .”  Id. at 764 (emphasis 
added).

There is not a word in the legislative history to suggest 
that “ other equitable relief” was added to § 706(g) to 
authorize quota remedies, and it is hardly conceivable



37

that so profound a departure from the anti-quota deci­
sion of Congress in 1964 would have been accomplished 
without some evidence of an intention to do so.

The decisions of this Court regarding permissible rem­
edies under § 706(g) have consistently drawn the line 
where Congress intended it to be drawn. While courts 
are certainly permitted to fashion make-whole relief, in­
cluding constructive competitive seniority, for “ actual 
victims of racial discrimination” see Franks, 424 U.S at 
772, individual entitlement to relief such as constructive 
competitive seniority must be established even if a pat­
tern or practice of discrimination has been proven. See 
Teamsters, 431 U.S. at 356-77. Even so, any award of 
relief, including constructive competitive seniority, must 
be predicated upon an established violation of the Act. 
As stated in Teamsters:

[T]he question of individual relief does not arise un­
til it has been proved that the employer has followed 
an employment policy of discrimination.

Id. at 361 (emphasis added). See also Franks, 424 U.S. 
at 791-92 (Powell, J., concurring in part and dissenting 
in part).

As the legislative history demonstrates, the limitations 
imposed by Congress on relief available pursuant to Title 
VII was motivated in no small part due to the concern 
that innocent nonminority incumbents might be dis­
placed unfairly by class-wide awards of constructive com­
petitive seniority. Provisions such as §§ 703(h) and (j) 
(discussed in Part II.C., infra) are indicative of this 
concern. As the Fifth Circuit noted in Papenvorkers 
Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969), 
cert, denied, 397 U.S. 919 (1970) :

It is one thing for legislation to require the creation 
of fictional seniority for newly hired Negroes, and 
quite another thing for it to require that time actu­
ally worked in Negro jobs be given equal status with 
time worked in white jobs. To begin with, requiring



38

employers to correct their pre-Act discrimination by 
creating fictional seniority for new Negro employees 
would not necessarily aid the actual victims of dis­
crimination. There would be no guaranty that the 
new employees had actually suffered exclusion at the 
hands of the employer in the past, or, if  they had, 
there would be no way of knowing whether, after 
being hired, they would have continued to work for 
the same employer. In other words, creating fictional 
employment time for newly-hired Negroes would com­
prise preferential rather than remedial treatment. 
The clear thrust of the Senate debate is directed 
against such preferential treatment on the basis of 
race.

Id. at 995 (emphasis added).04 The relief afforded to 
respondents herein clearly crosses over into the imper­
missible, preferential category of relief and would be 
invalid even had the proper predicate been laid for some 
relief due to an adjudicated violation of the Act.

The preferential relief granted below is inequitable in 
nature as the courts have deprived innocent nonminority 
incumbents of their jobs or their rank so that they 
might be replaced by employees who were not adjudicated 
victims of discrimination. As the Court stated in Team­
sters :

[T]he extent to which the legitimate expectations of 
nonvictim employees should determine when victims 
are restored to their rightful place is limited by basic 
principles of equity. In devising and implementing 
remedies under Title VII, no less than in formulat­
ing any equitable decree, a court must draw on the 
“qualities of mercy and practicality [that] have made 
equity the instrument for nice adjustment and recon­
ciliation between the public interest and private needs 
as well as between competing private claims.” Es-

24 Paper-workers was cited with approval by this Court in Team­
sters, 431 U.S. a-t 354 n.40. The Court observed that: “ Title 
VII did not proscribe the denial of fictional seniority to pre-Act 
discriminatees who got no job.” Id.



39

pecially when immediate implementation of an equi­
table remedy threatens to impinge upon the expecta­
tions of innocent parties, the courts must “ look to the 
practical realities and necessities inescapably involved 
in reconciling competing interests,” in order to de­
termine the “ special blend of what is necessary, what 
is fair, and what is workable.”

431 U.S. at 374-75 (citations omitted). While it de­
fended the District Court’s orders on the basis that the 
District Court “ did not issue a blanket order enjoining 
the layoff of all minority workers” (Pet. A. 37), the 
Court of Appeals ignored the equitable considerations 
imposed by the very statute which it sought to enforce 
and sanctioned a remedy which impinged upon the ex­
pectations of innocent nonminority incumbents in favor 
of employees who had neither claimed or established “vic­
tim” status.

The lower courts have substituted their own notions of 
an appropriate remedy for the restrictions on judicial 
relief imposed by § 706(g). While § 706(g) provides 
discretion to the district courts in structuring relief for 
individual victims of discrimination once a violation of 
the law has been proven,

Such discretionary choices are not left to a court’s 
‘inclination, but to its judgment; and its judgment is 
to be guided by sound legal principles.’
It is true that ‘ [e] quity eschews mechanical rules . . . 
[and] depends on flexibility.’ But when Congress in­
vokes the Chancellor’s conscience to further tran­
scendent legislative purposes, what is required is the 
principled application of standards consistent with 
those purposes and not ‘equity [which] varies like the 
Chancellor’s foot.’

EEOC v. Ford Motor Co., 102 S.Ct. 3057, 3063 (1982) 
(citations omitted) (quoting Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 416-17 (1975)). Since the remedial 
authority of courts under § 706(g) is limited by the



40

provision’s very terms to effectuating the Act’s overrid­
ing purposes of bringing discrimination to an end and 
compensating victims for their injuries, the District Court 
lacked authority to enter the modification of the 1980 
Decree. The persons who benefited from the District 
Court’s class-wide remedy were neither alleged or proven 
victims of hiring discrimination, and the injunctions 
against the City’s application of its seniority system in 
respondents’ favor distorts the statutory purpose. The 
District Court’s orders unnecessarily and inequitably 
trammel the interests of nonminority incumbent em­
ployees in contravention of and without concern for the 
principles inherent in the statute.

C. The Particular Concern Congress Expressed for the 
Operation of a Last-hired, First-fired Rule and the 
Special Status that Congress Accorded to Seniority 
Systems Must Be Given Great Weight by a Court 
When Crafting Affirmative Equitable Relief for 
Minority Employees.

In addition to the congressional revulsion toward quota 
remedies, the lower court should have given serious con­
sideration in crafting relief to the particular congres­
sional concern expressed in Title VII for the operation 
of a last-hired, first-fired seniority system such as was 
present in this case and for the “ special status” that 
Congress had accorded to seniority systems. Indeed, the 
Court of Appeals disregarded both the history and pur­
pose of §§ 703(h) and 703 ( j) ,  42 U.S.C. §■§ 2000e-2 (h ), 
2000e-2 (j ), and the decisions of this Court in failing 
to accord sufficient weight to the rights and interests of 
incumbent employees in the routine application of the 
city-wide seniority system under the instant circum­
stances.

1. Section 703(h). The plain language and legislative 
history of 703(h) of the Civil Rights Act of 1964 demon­
strate that Congress intended to foreclose attacks under 
the civil rights laws on bona fide seniority systems. Sec­
tion 703(h) provides that:



41

Notwithstanding any other provision of this sub­
chapter, it shall not be an unlawful employment prac­
tice for an employer to apply different standards of 
compensation, or different terms, conditions, or privi­
leges of employment pursuant to a bona fide senior­
ity or merit system, or a system which measures 
earnings by quantity or quality of production or to 
employees who work in different locations, provided 
that such differences are not the result of an inten­
tion to discriminate because of race, color, religion, 
sex, or national origin. . . .

42 U.S.C. § 2000e-2 (h ). Thus, the language of § 703(h) 
indicates that the operation of a seniority system is not 
subject to attack unless it is motivated by an intent to 
discriminate. See, e.g., Trans World Airlines, Inc. v. 
Hardison, 432 U.S. 63 (1977). The District Court spe­
cifically found that the seniority system or layoff policy 
here under attack was not adopted with the intent to 
discriminate (Pet. A. 73). This finding was not chal­
lenged by respondents on appeal (Pet. A. 11 n.6). Thus 
the language of the statute instructs that the City’s im­
plementation of its proposed layoff policy would not have 
constituted a violation of the Act which might provide a 
predicate for additional relief beyond that provided in 
the 1980 Decree. Interestingly, the District Court found 
the seniority system non-bona fide because it had discrim­
inatory effect (Pet. A. 74). Of course, this blatant error 
in light of Teamsters was reversed by the Court of Ap­
peals, although it found the error to be so meaningless as 
to relegate it to a footnote in the opinion (Pet. A. 11 
n.6).

This Court has had the occasion to examine the legis­
lative history of § 703(h) on several previous occasions. 
See, e.g., American Tobacco Co. v. Patterson, 456 U.S. 
63 (1982). As noted in Patterson, § 703(h) was intro­
duced as one of several Senate amendments to the initial 
bill passed by the House of Representatives, in response 
to charges that Title VII would destroy seniority rights.



42

See id. at 72. As part of the effort to clarify the intent 
and effect of the bill (an effort necessary to ensure its 
passage), Senator Clark, the floor manager of the bill, 
inserted three documents into the Congressional Record 
which the Court has characterized as “ authoritative indi­
cators” of the purpose of § 703 (h ). Id. at 73.

One of these documents was a Justice Department 
memorandum which stated, in part, that:

If, for example, a collective bargaining contract pro­
vides that in the event of layoffs, those who were 
hired last must be laid off first, such a provision 
would not be affected in the least by Title VII. This 
would be true even in the case where owing to dis­
crimination prior to the effective date of the title, 
white employers had more seniority than Negroes. 
Title VII is directed at discrimination based on race, 
color, religion, sex, or national origin. It is 'perfectly 
clear that when a worker is laid off or denied a 
chance for promotion because under established sen­
iority rules he is ‘low man on the totem pole’ he is 
not being discriminated against because of his race. 
. . . Any differences in treatment based on estab­
lished seniority rights would not be based on race 
and would not be forbidden by the title.

110 Cong. Rec. 7207 (1964) (emphasis added).26 This 
memorandum is particularly pertinent herein, instructing 
that seniority-based layoffs would not contravene the pol­
ices of Title VII, even where those layoffs might perpetu­
ate the effect of prior discrimination. As Justice Powell 
observed in Franks:

The congressional debates leading to the introduction 
of § 703(h) indicate a concern that Title VII not be 
construed as requiring immediate and total restitu­
tion to the victims of discrimination regardless of 
cost in terms of other workers’ legitimate expecta­
tions. Section 703(h) does not restrict the remedial

35 The other documents submitted by Senator Clark are to' similar 
effect. See Patterson, 456 U.S. at 73.



43

powers of a district court once a discriminatory 
practice has been found, but neither are the concerns 
expressed therein irrelevant to a court’s determina­
tion of “ appropriate” equitable relief under § 706 (g ).

424 U.S. at 791-92 (Powell, J., concurring in part and 
dissenting in part). See also Teamsters, 431 U.S. at 372. 
( “ Moreover, after the victims have been identified and 
their rightful place determined, the District Court will 
again be faced with the delicate task of adjusting the 
remedial interests of discriminatees and the legitimate 
expectations of other employees innocent of any wrong­
doing” (emphasis added)). In the instant case there has 
been no finding of post-Act discrimination violative of 
the Act on the part of petitioners and no individual mem­
ber of the respondent class has been adjudicated a victim. 
The legitimate expectations of nonminority incumbents 
cannot be forced equitably to yield to provide construc­
tive competitive seniority to respondents.26 As the 1980 
Decree contains no grant of constructive competitive sen­
iority, respondents simply must assume their place in the 
city-wide seniority system on the basis of their date of 
hire by the City with all attendant consequences.27

The Court recently discussed these same concerns in a 
different context:

Although Title VII remedies depend primarily upon 
the objectives discussed above, the statute also per­
mits us to consider the rights of “ innocent third par­

28 Lower courts have expressly held that the permissible relief 
for actual discriminatees does 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) ; Paperworkers Local 189, 416 F.2d at 988.

27 In point of fact, the city-wide seniority system at issue herein 
is most equitable in its application to' the respondents. The system 
does not place recently promoted blacks at a competitive disadvan­
tage vis-a-vis their nonminority counterparts in the same rank. 
Instead, an employee’s seniority is calculated in terms of his date 
of hire by the City for all purposes (J.A. 67, 103).



44

ties.” . . . The lower court’s rule places a particularly 
onerous burden on the innocent employees of an em­
ployer charged with discrimination. Under the 
court’s rule, an employer may cap backpay liability 
only by forcing his incumbent employees to yield sen­
iority to a person who has not proven, and may never 
prove, unlawful discrimination. As we have acknowl­
edged on numerous occasions, seniority plays a cen­
tral role in allocating benefits and burdens among 
employees. In light of the “ overriding importance” 
of these rights, we should be wary of any rule that 
encourages job offers that compel innocent workers 
to sacrifice their seniority to a person who has only 
claimed, but not yet proven, unlawful discrimination.
The sacrifice demanded by the lower court’s rule, 
moreover, leaves the displaced workers without any 
remedy against claimants who fail to establish their 
claims. If, for example, layoffs occur while the Title 
VII suit is pending, an employer may have to fur­
lough an innocent worker indefinitely while retaining 
a claimant who was given retroactive seniority. If 
the claimant 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 objec­
tives’1 ” of Title VII . . . require innocent employees 
to carry such a heavy burden.

EEOC v. Ford Motor Co., 102 S.Ct. at 3069-70 (empha­
sis added). These same considerations apply with equal, 
if not greater, force in the instant circumstance. In this 
case the lower courts have abrogated the seniority of in­
cumbent nonminorities in favor of individuals who have 
settled their claims short of adjudication, establishment 
of victim status or entitlement to constructive competitive 
seniority. The orders below impermissibly require in­
nocent nonminority incumbents to carry a burden which 
is not theirs to bear.

2. Section 703 ( j ) . In addition to the considerations and 
policy concerns expressed in § 703(h), the propriety of



45

the orders of the courts below must be weighed against 
similar congressional concerns expressed in § 703(j) of 
Title VII, 42 U.S.C. § 2000e-2(j), which states that Ti­
tle VII shall not:

be interpreted to require any employer . . .  to grant 
preferential treatment to any individual or to any 
group because of the race . . .  of such individual or 
group on account of an imbalance which may exist 
with respect to the total number or percentage of 
persons of any race . . . employed by any employer 
. . .  in comparison with the total number or percent­
age of persons of such race . . .  in the available work 
force in any community. . . .

In requiring the City to maintain the then existing per­
centages of blacks in each affected job classification, the 
orders of the District Court ran afoul of the very terms 
of § 703(j) .

The legislative history of § 703(j) supports this con­
clusion. Like the legislative history of § 703(h), that of 
§ 703(j) has been examined in depth by the Court. In 
Weber, the plurality and dissenting opinions all examined 
the legislative history of § 703(j) and concluded that the 
provision resulted from congressional concern that Title 
VII “would be interpreted to require employers with ra­
cially imbalanced work forces to grant preferential treat­
ment to racial minorities. . . .”  443 U.S. at 205. See also 
id. at 217 (Burger, C.J., dissenting); Id. at 227-28 
(Rehnquist, J., dissenting).

In light of the language and legislative history of Ti­
tle VII, this Court has ruled that “ [djiscriminatory pref­
erence, for any group, minority or majority, is precisely 
and only what Congress has proscribed,” Griggs v. Duke 
Power Co., 401 U.S. 424, 431 (1971), and that “ Title VII 
prohibits racial discrimination against the white petition­
ers . .  . upon the same standards as would be applicable 
were they Negroes. . . .” McDonald v. Santa Fe Trail 
Transportation Co., 427 U.S. 273, 280 (1976). This Court



46

has never interpreted Title VII to require preference 
based on race absent identified victims of discrimination.

In a case construing the permissibility of orders very 
similar to those in the case at bar, the Fifth Circuit has 
found such orders to be specifically prohibited by § 703 (j). 
In Watkins v. Steelworkers Local No. 2369, 516 F.2d 41 
( 5th Cir. 1975), the court of appeals held that the district 
court’s judgment requiring the reinstatement of black 
employees to achieve the racial balance existing prior to 
seniority-based layoffs was in error, stating:

To hold the seniority plan discriminatory as to the 
plaintiffs in this case requires a determination that 
blacks not otherwise personally discriminated against 
should be treated preferentially over equal whites. . . . 
The result which plaintiffs seek, therefore is not 
that personal remedial relief available under Title 
VII, but rather a preferential treatment on the basis 
of race which Congress specifically prohibited in sec­
tion 703(j ).

Id. at 47 (emphasis added).28 The orders of the District 
Court appealed from herein suffer from the same in­
firmity and must be reversed.

As Justice Powell stated in University of California 
Regents v. Bakke, 438 U.S. 265 (1978), “ [rjacial and 
ethnic distinctions of any sort are inherently suspect and 
thus call for the most exacting judicial examination.” Id. 
at 291 (emphasis added). In conducting such examina­
tions this Court has refused to justify allegedly remedial 
actions solely on generalized societal discrimination. As 
Justice Powell pointed out in Bakke:

28 Similar conclusions have been, reached on this and other grounds 
by three other court of appeals panels. See Chance v. Board of Ex­
aminers, 534 F.2d 993 (2d Cir. 1976), cert, denied, 431 U.S. 965 
(1977); Jersey Central Power & Light Co. v. Local Union 327, 
IBEW, 508 F.2d 687 (3d Cir. 1975), cert, denied, 425 U.S. 998 
(1976) ; Waters v. Wisconsin Steel Works of International Har­
vester Co., 502 F.2d 1309 (7th Cir. 1974), cert, denied, 425 U.S. 
997 (1976).



47

We have never approved a classification that aids 
persons perceived as members of relatively victimized 
groups at the expense of other innocent individuals 
in the absence of judicial, legislative, or administra­
tive findings of constitutional or statutory violations.

Id. at 307 (emphasis added). Respondents herein must 
seek approval of just such a classification at the expense 
of innocent nonminority incumbents. Findings of viola­
tions sufficient to permit the displacement of innocent in­
cumbents must be much more focused than a general find­
ing of overall “ ‘societal discrimination,’ an amorphous 
concept of injury that may be ageless in its reach into 
the past.”  Id. Such “ focused” proof was not presented to 
the District Court by respondents.29

Bakke, and later Fullilove v. Klutznick, 448 U.S. 448 
(1980), establish a fundamental prerequisite to the im­
position of a racial preference classification— a finding of 
actual prior discrimination. Moreover, the preference 
must be “a limited and properly tailored remedy to cure 
the effects of prior discrimination” to pass constitutional 
muster. Fullilove, 448 U.S. at 484. The Fullilove court 
emphasized that the program approved there was very 
narrowly tailored so that only those minority businesses 
who had actually suffered from past discrimination would 
benefit from the quota imposed. In contrast, the prefer­
ence imposed in the instant case is neither “ limited,” 
“ properly tailored,” based on findings of “prior discrimi­
nation,” nor a “ remedy.” As such it must be reversed.

The lower courts have arrived at the wrong result in 
this case. They bypassed the required analysis and sub­
stituted for it their own subjective view of what is right 
and wrong under the circumstances. By ignoring the 
fundamental principles underlying Title VII jurispru­

29 indeed, the evidence presented by respondents to the District 
Court included hiring statistics that dated back to 1950, some 22 
years prior to the effective date of Title VII as to the1 City (Pet. 
A. 70-71).



48

dence as set forth above, the lower courts have engaged 
impermissibly in their own legislative endeavor. See 
Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 
77, 95 (1981). The courts below have overstepped their 
authority and abused their discretion by judicially en­
larging upon explicit limitations imposed by Congress on 
the general remedial provisions in the Act.

CONCLUSION

For the foregoing reasons, the judgment under review 
in Nos. 82-206 and 82-229 should be reversed.

Respectfully submitted,

A llen  S. Blair 
Counsel of Record 

James R. Newsom  III
Hanover, W alsh , Jalenak  

& Blair
219 Adams Avenue 
Memphis, Tennessee 38103 
(901) 526-0621 

Attorneys for Petitioner, 
Firefighters Local Union 
No. 17 8 U



STATUTORY APPENDIX



la

STATUTORY APPENDIX

UNITED STATES CODE 
U.S.C. § 1981

All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefits of all laws and 
proceedings for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exac­
tions of every kind, and to no other.
i2  U.S.C. § 1983

Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or Ter­
ritory or the District of Columbia, subjects, or causes to 
be subjected, any citizen of the United States or other 
person within the jurisdiction thereof to the deprivation 
of any rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party injured 
in an action at law, suit in equity, or other proper pro­
ceeding for redress. For the purposes of this section, any 
Act of Congress applicable exclusively to the District of 
Columbia shall be considered to be a statute of the Dis­
trict of Columbia.
U2 U.S.C. § 1988

The jurisdiction in civil and criminal matters conferred 
on the district courts by the provisions of this Title, and 
of Title “ CIVIL RIGHTS,” and of Title “CRIMES,” for 
the protection of all persons in the United States in their 
civil rights, and for their vindication, shall be exercised 
and enforced in conformity with the laws of the United 
States, so far as such laws are suitable to carry the same 
into effect; but in all cases where they are not adapted to 
the object, or are deficient in the provisions necessary to



2a

furnish suitable remedies and punish offenses against law, 
the common law, as modified and changed by the constitu­
tion and statutes of the State wherein the court having 
jurisdiction of such civil or criminal cause is held, so far 
as the same is not inconsistent with the Constitution and 
laws of the United States, shall be extended to and govern 
the said courts in the trial and disposition of the cause, 
and, if it is of a criminal nature, in the infliction of pun­
ishment on the party found guilty. In any action or pro­
ceeding to enforce a provision of sections 1977, 1978, 
1979, 1980, and 1981 of the Revised Statutes, or title 
VI of the Civil Rights Act of 1964, the court, in its 
discretion, may allow the prevailing party, other than 
the United States, a reasonable attorney’s fee as part of 
the costs.
42 U.S.C. § 20000-2 {a,)

It shall be an unlawful employment practice for an 
employer—•

(1) to fail or refuse to hire or to discharge any in­
dividual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or
(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
race, color, religion, sex, or national origin.

42 U.S.C. %2000e-2(h)

Notwithstanding any other provisions of this title, it 
shall not be an unlawful employment practice for an 
employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employment



3a

pursuant to a bona, fide seniority or merit system, or a 
system which measures earnings by quantity or quality of 
production or to employees who work in different loca­
tions, provided that such differences are not the result of 
an intention to discriminate! because of race, color, reli­
gion, sex, or national origin, nor shall it be an unlawful 
employment practice for an employer to give and to act 
upon the results of any professionally developed ability 
test provided that such test, its administration or action 
upon the results is not designed, intended or used to dis­
criminate because of race, color, religion, sex, or national 
origin. It shall not be unlawful employment practice un­
der this title for any employer to differentiate upon the 
basis of sex in determining the amount of the wages or 
compensation paid or to be paid to employees of such em­
ployer if such differentiation is authorized by the provi­
sions of section 6(d) of the Fair Labor Standards Act of 
1938, as amended (29 U.S.C. 206(d)).
U2 U.S.C. § 2000e-2 (j)

Nothing contained in this title shall be interpreted to 
require any employer, employment agency, labor orga­
nization, or joint labor-management committee subject to 
this title to grant preferential treatment to any individ­
ual or to any group because of the race, color, religion, 
sex, or national origin of such individual or group on ac­
count of an imbalance which may exist with respect to 
the total number or percentage of persons of any race, 
color, religion, sex, or national origin employed by an em­
ployer, referred or classified for employment by any em­
ployment agency or labor organization, admitted to mem­
bership or classified by any labor organization, or ad­
mitted to, or employed in, any apprenticeship or other 
training program, in comparison with the total number 
or percentage of persons of such race, color, religion, sex, 
or national origin in any community, State, section, or 
other area, or in the available work force in any commu­
nity, State, section or other area.



4a

U2 U.S.C. § 2000&-5 (g)

If the court finds that the respondent has intentionally 
engaged in or is intentionally engaging in an unlawful 
employment practice charged in the complaint, the court 
may enjoin the respondent from engaging in such unlaw­
ful employment practice, and order such affirmative action 
as may be appropriate, which may include, but is not lim­
ited to, reinstatement or hiring of employees, with or 
without back pay (payable by the employer, employment 
agency, or labor organization, as the case may be, respon­
sible for the unlawful employment practice), or any other 
equitable relief as the court deems appropriate. Back pay 
liability shall not accrue from a date more than two years 
prior to the filing of a charge with the Commission. In­
terim earnings or amounts earnable with reasonable dili­
gence by the person or persons discriminated against shall 
operate to reduce the back pay otherwise allowable. No 
order of the court 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 was refused admission, suspended, or 
expelled, or was refused employment or advancement or 
was suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex, or 
national origin or in violation of section 704(a).