*1 FIREFIGHTERS LOCAL NO. 1784 UNION STOTTS et al. Argued
No. December 82-206. 1983 Decided June 1984* *Together et al. v. Stotts 82-229, Memphis Department with No. Fire al., et also certiorari to the same court. *3 argued petitioners
Allen S. Blair for the cause in both petitioner cases. With him on the brief for No. 82-206 Pierce, Jr., James R. Newsom III. D. was and Clifford petitioners Louis P. Britt III filed a brief for in No. 82-229. reply Blair, Newsom, Pierce, Messrs. and Britt filed a brief petitioners for in both cases. argued Lee
Solicitor General cause for the United support petitioners. curiae in States as amicus himWith Attorney Reynolds, Dep- on the brief were Assistant General Attorney uty Cooper, Phillips, Assistant General Carter G. Landsberg, Dimsey. Brian K. and Dennis J. argued respondents. B.
Richard Fields the cause Daniel, M. With him on the brief were Thomas Jack Green- berg, Clyde Murphy, Sherwood, Ellis, E. L. 0. Peter Ronald Barry Schnapper, † L. Eric and Goldstein opinion delivered the Court. Justice White challenge Appeals’ approval of an Petitioners the Court of City Memphis following enjoining the its se- order niority determining system in must laid as a result who be off Respondents budgetary in- shortfall. contend that junction necessary to effectuate terms of a Title VII City agreed in which the undertake certain consent decree obligations remedy past hiring promotional order and Fed urging †Briefs amici curiae reversal were filed for American Organizations by Al Congress eration of Labor and of Industrial al. J. et Woll, Gottesman, Weinberg, Laurence bert Michael H. Robert M. Gold; A. League by for the B’rith Robert Anti-Defamation of B’nai
Helman, Odorizzi, Harris, Meyer Michele M. Finger, Daniel J. Justin Eisenberg, Jeffrey Shedlin; Sinensky, P. Police Leslie for the Detroit Jr.; Mooney, Officers Association Walter S. Nussbaum Donald J. Williams, Employment Advisory Equal for the Council Robert E. McDowell, Douglas Associ Bagby; and Thomas R. for the International *4 AFL-CIO, Jr., Michael Fighters, by of Fire Hickey, ation Edward J. and Popeo, Wolly; Legal for J. Washington by S. and the Foundation Daniel Kamenar, D. and Nicholas E. Paul Calió. City of Briefs the urging of amici curiae affirmance filed for were Jackson; Coordinating Center by for Detroit Frank the Affirmative Action Stavis, Mirer, Lobel; American by the Jeanny et al. Morton for and Jules Dershowitz; by Lawyers’ Committee Congress Jewish Nathan Z. for the Martin, Fred by Jeffrey Rights Sharp, for Civil Under Law Richard M. C. Robinson; the Mexican Fishman, for Kapp, N. Robert H. and L. William King, L. Joa- Legal and Robert by American Defense Educational Fund Bailer; Associa- Black Police quin Avila, and Morris J. for G. the National Neubome; National the by E. for tion et al. Richard Larson and Burt Avner; Officers for and for Organization by et I. Women al. Judith Paterson. et L. Justice al. Robert Harris and Eva Jefferson practices. Because we conclude that the order cannot be justified, as an to or either effort enforce consent decree modification, a valid we reverse.
h-H respondent holding position Carl a Stotts, black firefighting captain Memphis, Depart- in the Fire Tenn., complaint in ment, filed a class-action the United States District Court for the Western District of Tennessee. The complaint charged Memphis Department Fire and engaged pattern practice were in certain officials a or making hiring promotion on in and decisions the basis of race Rights of Title violation VII Civil Act of §2000e seq., §§1981 S. et U. C. as well as U. C. and certified 1983. District Court the case as a class action subsequently and it with an consolidated individual action by respondent firefighting private Fred Jones, filed black Department, in the who that he had claimed been denied promotion Discovery proceeded, of his race. because negotiations in con- settlement due ensued, and, course, approved decree sent entered the District April 25, 1980. remedy hiring purpose The stated of the decree was to promotion practices Department respect . “ofthe . . with (CA6 employment 541, 575-576 to the of blacks.” 679 F. 2d 1982) promote (Appendix). Accordingly, City agreed backpay provide employees to 81 13named individuals adopted long-term goal Department. the Fire It also minority representation increasing proportion Department job approxi- Fire each classification mately proportion Shelby in the labor of blacks force City County, by agreeing did not, Tenn. However, “any regulation law, decree, rule, admit violations allegations” respect complaint. at 574. Id., with plaintiffs waived further relief save to enforce jurisdiction “for the District Court decree, ibid., and retained *5 may necessary appropriate further be such orders purposes Id., of this decree.” at 578. effectuate the long-term hiring goal paralleled outlined in the decree provisions of a 1974 which settled a case decree, consent ap- against City by brought which the United States and citywide. plied decree, Like the 1980 decree also hiring goal filling interim on an annual basis established an job percent Department quali- in the vacancies with applicants. fied The 1980 decree contained an addi- black goal respect'to promotions: Department tional with was attempt percent promotions to ensure that job given be to blacks. Neither each classification decree provisions layoffs in rank, contained for or reductions seniority. any competitive The 1974 neither awarded decree require purposes promotion, transfer, did that for assignment, seniority computed “as was be the total person City.” seniority of Id., with the at 572. early May City projected 1981, the announced that personnel
budget required a deficits reduction nonessential Layoffs throughout city government. were to be based on the “last first fired” rule hired, under which wide seniority, employee’s length determined each of continu- permanent employment, ous service from the latest date of deciding laid If was the basis who would be off. a senior employee’s position or eliminated, were abolished the em- ployee “bump ranking position could down” to lower rather Appeals than be laid off. As the noted, Court later this layoff policy adopted pursuant system was to the incorporated . . “mentioned the 1974 Decree and . in the City’s understanding memorandum of with the Union.” 679 F. at 549. 2d, May respondents’ request,
On the District en- restraining temporary forbidding layoff tered a order previously employee. black which Union, had not party permitted been inter- cases, either these hearing, appeared At vene.
567 positions Department that 55 in then-filled were be positions eliminated and that 39 of these employees having “bumping” rights. were filled with
It was estimated that employees firefighting 40 least-senior in the bureau of the Department1 would be laid offand that these 25 were white appeared percent employ- 15 and black. It also 56 that Department in ees hired since 1974 had been black percentage employees that the of black from had increased approximately percent percent 4 3 or in 1154 in 1974to 1980. May granting
On the District Court entered an order injunction. The found court that consent decree “did contemplate not be method to used for reduction rank lay-off,” layoff policy or and that was accordance with City’s seniority system adopted in- and was not with concluding pro- tent to Nonetheless, discriminate. that the discriminatory posed layoffs racially would have a effect and system seniority was a bona fide the District one, City apply seniority policy “not ordered proposed percentage of insofar as it will decrease the black inspectors privates pres- lieutenants, drivers, that are ently employed . . . .” On June the District Court broadened its order to include three additional classifications. layoff plan, protecting employees A modified aimed at black comply in the so as seven classifications with the court’s pursuant presented approved. Layoffs order, plan in- the modified were then carried out. certain comply injunction, nonminority employ- stances, with the seniority minority employees with than laid ees more were off demoted in rank.2 bureaus, Memphis Department into several includ Fire is divided office, administration,
ing firefighting, apparatus, maintenance, and alarm positions original injunction, but prevention. fire Of the covered all firefighting one were in the bureau. City ultimately privates, off 24 3 of whom were black. Had laid followed, system among been blacks would have been Thus, privates employees three were laid off as a laid off. white appeal, Appeals for the Circuit On the Court of Sixth despite Court was affirmed its conclusion the District seniority system wrong holding City’s was not Characterizing prin- bona fide. 679F. n. 6. 2d, cipal modifying isssue as “whether the district court erred minority employment being prevent the 1980 Decree to *7 by unanticipated layoffs,” disproportionately id., affected Appeals 551, the concluded that the District Court of determining properly. had acted that the decree After was properly approved in instance, the first the court held general prin- permissible contract modificationwas under ciples City provide “a because the “contracted” to substantial positions” supervisory increase in the of minorities in number layoffs and the Al- breach that contract. at 561. Id., would ternatively, the court held that the District Court was modify authorized to the decree because new and unforeseen hardship parties circumstances had created a for one of the Finally, articulating to the Id., decree. at 562-563. three rejected petitioners’ argu- court rationales, alternative improper ment that the modificationwas because conflicted City’s seniority system, with the which was immunized from 703(h) § Title VII under of that S. C. Act, attack U. §2000e-2(h). (and officials) Department
The Fire
and the Union
separate petitions
petitions
filed
for certiorari.
two
granted,
(1983),
were
1—I f—< We deal first with claim that these cases are moot. Respondents injunction submit that entered these only injunction dealing cases was a with the 1981 layoffs, employees that all laid off the in- white result of junction duty only lay- were restored to one after their month direct result of the District Court’s order. The number of whites demoted aas result of the order is not clear from the record before us. and that those
off, who were demoted have now been offered Assertedly, positions. injunction back their old no longer effect, has force or and the cases are therefore moot. For reasons, several we find the submission untenable. injunction
First, the on its face ordered that “the defend- apply seniority policy proposed ants not insofar as it will percentage employees specified decrease the black” Department. policy in the classifications was policy adopted City and contained the collective- bargaining injunction contract with the Union. The af- Appeals firmed the Court of and has never been vacated. appear injunction It from its would terms that the is still complied in force and that set unless aside must be with layoffs. connection with future applied only
Second, even if the itself layoffs, predicate preliminary injunction for the so-called ruling was the that the consent decree must be construed *8 any provide lay- and, mean in event, must be modifiedto that percentage employed offs were not to the of in reduce blacks Department. the Fire Furthermore, both the District Court Appeals, and the of reasons, different held that the provisions seniority City’s collective-bargaining of the con- disregarded purpose achieving tract must be of for the the rulings mandated result. These remain undisturbed, we respondents urging see no indication that concede moot- rulings that these in error ness were and should be reversed. contrary, they To the continue to them. Unless defend City obey rulings require overturned, these would the the disregard seniority agree- modified consent decree and to its making layoffs. ment in future merely
Accordingly, injunc- inquiry the is whether the effect, tion is but whether the mandated still modification impact par- of the consent decree continues to have on the quite uncon- ties such that the case remains alive.3 We are 3The had done Appeals, recognizing Court of that the District Court applying seniority sys- temporarily preclude City more than from its 570 respondents’ us, is the burden to convince
vinced—and it (1979)— County Angeles 631 Davis, Los U. S. pro of the decree and the tanto invalida- that the modification seniority City system of no real concern to the tion is layoffs contemplate again that if it will never carried because seniority system out accordance with the would violate For alone, modifieddecree.4 this reason case not moot. tern, “principal issue” before it was “whether the district stated minority modifying prevent employment Decree to court erred the 1980 by layoffs.” being disproportionately unanticipated affected 2d, at F. 551. necessary, City respondents if layoffs Of course become both by decree, City it will will be affected the modified because be unable to seniority they apply system, respondents given greater its because will be they system. than under protection would otherwise receive More over, City immediately though will affected the modification be even intact, layoff currently pending. ruling If no the lower courts’ is left City longer promise employees will no able to current or future be Against will, layoffs solely seniority. will be on the basis of its conducted City power employees its deprived has been offer one employment City many benefits that make with the attractive to workers. Seniority traditionally been, be, great has and continues a matter of “ provision than concern to American workers. ‘More other col agreement. security lective . . economic [-bargaining] affects the ” Franks v. Bowman employee its individual covered terms.’ (1976) Transportation Co., Aaron, (quoting 424 U. S. Reflections Seniority the Legal Enforceability Rights, Nature and 75 Harv. L. (1962)). Rev. speculation suppose City It is not idle required greater monetary compensation will be fringe to offer benefits in order to attract and the same caliber and as it retain number workers offering completely implement without such free could benefits were seniority system. City’s employment extent to which the efforts *9 by “bargaining may chip” harmed the loss of difficult will be this be measure, importance in view of the have but American workers benefits, insig harm traditionally placed on such the cannot said to be be employer’s bargaining position substantially as Certainly, nificant. is by precluding offering employees a from the benefits affected decree seniority system provides of a as it is a state statute that economic McCorkle, Co. striking employees. Super Engineering Tire benefits to (1974). 416 U. S. 122-125 judgment continuing Third, the below will have a effect on City’s management Department the of the in still another way. City Although has or restored offered to restore to positions employees their former all white were who laid off employees demoted, those have not been made whole: pay, those who were laid off have lost month’s as well seniority employees that has not restored; been and those “bumped accepted positions who down” and lesser will also backpay unjustified. have if claims their demotions were judgment Appeals Unless the of the Court of reversed, layoffs however, and demotions were accordance with quite expect the law, and it would be unreasonable to City pay money employees legal out to which the had no right. respond seniority Nor would it feel free employees City points claims of the three white who, as the competitive seniority lost out, relation to all other individ including minority employ uals who were not off, laid those injunction.5 ees who would have been laid off but Appeals’ judgment hand, On the other if the Court of City wholly reversed, the would be free to take different position respect backpay seniority. with and
Undoubtedly, money seniority involved, not much are seniority money at stake does not but amount de long parties as the have a termine mootness. As concrete litigation, interest in the of the the case is not outcome moot dispute. notwithstanding the size of the Powell v. McCor mack, 395 U. S. 496-498 Moreover, a month’s pay negligible injunc item is not for those affected competitive seniority may of a tion, and loss month’s later precludes City reducing Since the District Court’s order percentage employees holding particular jobs lay- of black in the event aof seniority competitive in rank since off or reduction is the basis for determining down, or bumped question who will be laid off there is some whether, below, light judgment City legally could restore to competitive they layoffs employees had before the laid-off violating the order. without
572 gets promotion,
determine who who is entitled to bid off if is reduction transfers, or who first laid there another us, in it to and substance, force. These are matters seems enough Franks so to foreclose claim of mootness. Cf. (1976); Transportation 424 Co., v. Bowman U. S. 756 Floyd, supra, v. McCormack, Powell v. Bond 496-498; 4 n. U. S. successfully City’s respondents the ini- short, attacked layoff plan judgment modifying tial and secured a the consent ordering City disregard seniority policy, decree, to its layoffs enjoining any percentage that would reduce the Department. Respondents blacks continue defend may rulings, which, said, those we have determine City’s disposition backpay claims claims for restoration seniority competitive respondents them- that will affect longer It selves. is thus unrealistic to claim that there is no City respondents dispute respect between with scope Respondents of the consent decree. cannot invoke jurisdiction of a federal court to modifi- obtain favorable ruling of a consent decree and from cation then insulate that by claiming they appellate longer review are inter- no particularly matter, ested con- when modification parties tinues to have adverse on the effects other action.6
Ill District issue at the heart of this case whether powers injunction requiring entering Court exceeded its applicable employees off, white to be laid when the otherwise Camenisch, University Texas present distinguishable case is defend (1981), relies, in that U. which dissent by the modified ant in Camenisch was not a party had been a decree that defendant expired, lower court. When the that case City is faced Here, the respects pre-injunction in all restored its status. applying it from prevents with a modified consent decree that system in the manner that chooses.
seniority system7 layoff would have called for the of black employees seniority.8 with less We are convinced that the Appeals resolving Court in erred this issue and in affirm- ing the District Court.
A Appeals The Court of first that held the did no more than enforce the terms of the consent decree. This specific-performance approach rests on the notion that be-
7Respondents contend that understanding the memorandum of between City Union law, citing the and the is unenforceable under state Fulenwider (Tenn. 1982). Firefighters 1784, Local Assn. Union 649 W. 2d However, validity unimportant of that memorandum under state law purposes presented First, of the issues in this case. the Court of Appeals reaching assumed that the memorandum in was valid its decision. 2d, decision, 679 F. at n. reviewing 20. Since we are we are free Moreover, to assume the same. if even memorandum unenforce- able, City’s seniority system place. City unilaterally is still in adopted seniority system citywide in policy incorpo- 1973. That into of understanding Firefighters rated the memorandum with the Union effect, eitywide including application but its to the Depart- Fire ment, irrespective continues of the status of the memorandum. 8The only dissent’s contention that the issue before us is whether Court so misapplied issuing preliminary injunc District the standards for a discretion, it post, tion that abused its at District overlooks what the apply Court did in this purport case. District Court did not injunction. determining preliminary standards for It whether to issue Instead, having did even mention them. found the consent decree contemplate “not did what would used for a reduction rank or method be layoff,” the court considered or not it should “whether ... exercise its Cert, authority modify App. to Pet. for the consent decree . . . .” 82-229, p. above, Appeals As correctly No. A73. noted the Court rec ognized injunction, that more was at stake than a mere stating “principal court modify issue” was “whether district erred in ing minority the 1980 prevent employment being Decree to affected by layoffs.” F. disproportionately unanticipated 2d, By at 551. deciding whether interpreting modifying the District erred or City preclude seniority the consent decree so as to from applying its shrills, system, not, attempt question we do as the dissent to answer a never faced the lower courts. obligation City general to use its best was under
cause proportion force, of blacks on the to increase the efforts layoff by attempting to effectuate a breached the decree policy reducing percentage employees in the of black though policy Department such was mandated even City adopted by system A and the Union. permitted argument since the decree of this is that variation “may Court to enter later orders be the District purposes necessary appropriate to effectuate the of this (Appendix), City agreed F. had decree,” 2d, *12 injunction layoffs against an that would reduce advance to employees. proportion convinced, black We are how- improvident of the that both of these are constructions ever, consent decree. “scope a consent must
It is to be recalled that the decree corners, its not to be discerned within four and reference might satisfy purposes parties of the it” what by of one or “might plaintiff have been written had the estab- what legal litigation.” his and lished factual claims theories 402 U. 681-682 Co., United States Armour & recognized, Here, as the District there no is layoffs four mention of or demotions within the corners of the any suggestion depart an decree; nor is there intention to seniority system existing City’s from from the or ar- rangements with the We cannot believe that the Union. thought parties City simply to the decree would dis- arrangements seniority regard with the and the Union system following. any it then Had was there been intention depart seniority plan layoffs from the in the event of demotions, it much more there reasonable to believe that express provision have would been to that effect. This is particularly true since the it not “in- decree stated that was provisions” decree, tended to conflictwith of the 1974 (Appendix), F. 2d, at 574 and ex- since latter decree pressly anticipated City seniority, recognize that the would surprising City at 572. id., It thus not that when anticipated layoffs and it in the first demotions, instance
faithfully pre-existing seniority system, plainly followed its having thought already agreed depart it no had express it. It therefore cannot be said that the terms contemplated injunction the decree that such an be would entered. argument proper because it purposes equally
carried out the of the decree is unconvinc- ing. purpose remedy The decree announced that its was “to past hiring promotion practices” Department, id., dispute “appropriate at 575-576, and to settle the as to the procedures hiring promotion,” and valid at 574. id., provide agreed-upon remedy, The decree went on to but remedy have indicated, we did not include the dis- placement employees seniority of white with over blacks. “remedy”, Furthermore, is reasonable to believe that the purpose provide, which it was the of the decree to would appropriate exceed the bounds of the remedies that are provision express under Title VII, at least absent some that effect. As our cases have clear, made however, reemphasized protects as will be Title VII below, fide bona seniority systems, inappropriate deny and it is an innocent employee provide the benefits of his order to *13 remedy pattern-or-practice in a suit such as this. We thus City system have no doubt that the considered its to be valid departing and that it had no intention from it when it agreed the 1980decree. to
Finally, it must be remembered that neither the Union nor nonminority employees parties the were to the suit when the entry 1980 decree was entered. Hence the of that decree any by agreement any cannot be to indicate said them to presence its terms. Absent the of the Union or the nonmi- nority employees opportunity agree and an to or dis- them agree provisions might with of the decree that encroach rights, unlikely City highly on their it seems would purport bargain away nonminority rights to under the then- seniority system. existing We therefore conclude that the injunction merely agreement does not enforce the of the injunction parties If the in consent decree. the reflected justified to on some other basis. stand, it must be B Appeals if the
The Court of held even compliance compelling of the not with the terms viewed as properly entered District decree, it still because authority modify decree when Court had inherent to required layoffs unexpectedly which, if an economic crisis City proposed, would undermine the af- carried out as the impose firmative in the decree and an undue action outlined hardship respondents. true, the court held, on This was though even seniority system conflicted with bona fide the modification City. Appeals
adopted The Court of reaching erred conclusion.9 this 9, suggest, post, at and n. and Justice dissent seems to expressly states, post,
Stevens that Title VII is irrelevant determining properly modifying acted whether the District Court However, litigation, affirming consent was Title VII and in decree. this decree, extensively Appeals modifications relied of the the Court of what authority posture That is the under Title VII. considered be Furthermore, in which the us. the District Court’s author cases come to ity impose wholly dependent of decree is not on the a modification authority adopt decree. a consent decree “[T]he District Court’s only enforce,” comes which the decree is intended to from statute parties’ Wright, Railway Employees decree. consent U. S. recognition principle, of this this Court Wright held brought in the terms change that when a law of decree into entered, conflict pursuant with the to which the decree was statute decree objections parties should one of be modified over the bound reason, By token, decree. and for the same a district the same court cannot enter a of a in Title VII disputed modification consent decree litigation if the resulting with that statute. order is inconsistent Thus, Title necessarily VII acted as a limit on the District Court’s authority modify objections City; the issue decree over *14 cannot be solely by resolved reference to the terms of decree and equity. of Since, note, infra, precludes notions Title VII a we court displacing from nonminority employee seniority district with under a 703(h) provides VII Section of Title that it is not an unlaw- employment practice apply ful to different standards of com- pensation, privileges terms, conditions, or different or em- ployment pursuant seniority system, provided to a bona fide that such are not the an differences result of intention to City discriminate because of race.10 It is clear that the had seniority system, proposed layoff plan a that its conformed system, making City in to that and that the settlement the agreed competitive seniority had not award mi- nority employee City proposed lay whom the off. The City seniority District Court held that the not its could follow system making proposed layoffs proposal in its its because discriminatory plan. in was effect and hence not a bona fide 703(h), permits application however, Section the routine of a seniority system proof absent intention to discriminate. States, Teamsters v. United 431 U. S. layoff proposal
Here, the District Court itself that the found adopted purpose or intent was not with the to discriminate on City agreeing Nor in the basis race. had the to the decree any way engaged admitted that had intentional dis- Appeals crimination. The Court was therefore correct holding layoff disagreeing with the District Court’s that the seniority plan application system, a was not bona fide City appear and it would could be faulted for following seniority plan expressed agreement with system finding a contractually seniority absent either established seniority discriminatory system adopted intent or deter- was with necessary remedy proven make whole victim mination such discrimination, precluded granting the District Court was such City’s objection in these cases. relief over the (h) provides employment “it be Section 703 shall not an unlawful compensation, practice employer apply or for an different standards terms, conditions, pursuant to a bona privileges employment different system fide . differences are not provided or merit . . that such race, color, religion, the result of an intention to discriminate because of 2000e-2(h). sex, origin § or national . . . .” U. C. *15 Appeals held that the Union. The Court of nevertheless though injunction proper the was even it conflicted with seniority system. the This was error. proposed support position, Appeals
To the Court of first its theory, strong policy favoring e., a “settlement” i. that the voluntary permitted settlement Title VII actions consent seniority systems. at decrees that on But this encroached stage opinion, Appeals supporting in its the the Court was proposition merely if that even the was not enforc- ing agreed-upon terms of the decree, District authority modify objection had to decree over parties. theory, one of the The settlement whatever might application has be, merits otherwise no when there is respect disputed no “settlement” with Here, to issue. agreed-upon competitive the ity decree neither awarded senior- minority employees purported any way nor system. depart seniority ground sup- Appeals
A second advanced the Court of injunction port entered conclusion could be seniority system notwithstanding its conflict with the incongruous “[i]t assertion that would be hold that the preferred resolving employment use of the means of dis- power crimination action decreases the of a court to order policies which relief vindicates the within Title embodied VII §§ C. 2d, and U. S. and 1983.” 679 F. 566. The allegations complaint if court concluded in the had proved, the District been Court could have entered an order seniority provisions. overriding the court Therefore, authority “[t]he trial court had reasoned, override seniority Firefighter’s provisions Union to effectuate the purpose of the 1980Decree.” Ibid. difficulty approach it overstates is that with this system
authority seniority disregard of the trial court remedy plaintiff successfully proved fashioning a after a has practice employer pattern having that an or has followed a discriminatory applicants employees. If effect black they plaintiff individual members of a class demonstrate that discriminatory they practice, have been actual victims of the may competitive seniority given right- be awarded their place ful on the This much roster. is clear from *16 Transportation (1976), Franks v. Co., Bowman 424 U. 747 S. supra. and Teamsters v. States, Teamsters, United how- membership ever, also made clear that mere in the disad- vantaged class is insufficient to award; warrant a prove discriminatory practice each individual must impact had on him. 431 S., an U. at 367-371. Even when discriminatory practice an individual shows that the has had impact automatically on him, an he is not entitled to have a nonminority employee laid off to make room for him. He may vacancy have to until a if occurs,11 wait there are nonminority employees layoff, the court must balance the equities determining job. in who is entitled to the Team- supra, at 371-376. sters, EEOC, See also Ford Motor v.Co. (1982). finding 458 U. S. 236-240 there 219, Here, was no layoff protected that of the blacks had been victim competitive seniority of discrimination and no award of any to parties formulating them. Nor had the consent purported identify any specificemployee decree entitled to particular relief other than those listed the exhibits at- light It decree. therefore to us tached seems Appeals imposed parties Teamsters, the Court on the adjunct something of settlement that could not have been gone plaintiffs proved ordered had the case to trial and the pattern practice that a or discrimination existed. ruling competitive
Our Teamsters that a court can award seniority only beneficiary actually when the of the award has illegal a victim of discrimination is been consistent with the § 706(g) policy behind of Title VII, which affects the remedies 11 uniformly Lower courts have held that relief for actual not victims does g., e. Pat bumping employees previously occupying jobs. See, extend cert, Co., terson American Tobacco (CA4), denied, v. 535 F. 2d 267 Papermakers Paperworkers Local United (1976); 429 920 U. S. cert, (CA5 States, 1969), United denied, F. U. 2d policy, litigation.12 is to That which in Title available YII only provide have been actual relief to those who make-whole illegal repeatedly expressed discrimination, was victims congressional sponsors during the debates. the Act charged legislation Opponents Title VII became employers be ordered enacted, if bill were could racially promote persons in order to achieve hire and though persons had not force even those balanced work Responding illegal to these been victims discrimination.13 explained charges, Humphrey on a court’s the limits Senator powers remedial as follows: require hiring, ad- reinstatement,
“No court order can any- payment pay membership, or of back mission employment advance- one who refused fired, *17 by ment or to a union an act of discrimination admission by expressly in this title. This is stated forbidden 707(e) [enacted relevant last sentence of section without § change 706(g)] Contrary allegations of as .... to the opponents nothing in it title, some of this there is has 706(g) provides: respondent Section “If the court finds that the employ intentionally intentionally engaged in or engaging is in an unlawful respond practice charged complaint, may enjoin in ment the court such employment practice, from order engaging ent such unlawful lim may include, is not may appropriate, affirmative action as be which but . to, pay. . hiring employees, ited reinstatement or with or without back ... No any equitable appropriate. or other court relief as the deems indi of an require order court shall the admission or reinstatement reinstatement, promotion or hiring, vidual as member of a or the union pay, if any back employee, payment an to him of individual an or the re or was admission, expelled, suspended, such individual was refused or any discharged for employment suspended or fused or advancement or was sex, or race, color, religion, than discrimination on account of reason other 704(a) 86 Stat. § title.” origin national or violation of of this 2000e-5(g). § U. S. C. (1963)(minority Sess., 72-73 Rep. Cong., H. 88th 1st See R. No. Hill); (1964) (remarks and Sen. Ervin report); 110 of Sen. Cong. Rec. 4764 (remarks id., (remarks Robertson); at id,, at 7418-7420 Sen. (remarks and Sen. Stennis Smathers); id., Sen. Sen. 9034-9035 Tower). give any power will to the Commission or to court to require firing employees . . . ... of in order to meet a ‘quota’ racial or to achieve certain racial balance. That bugaboo brought up has been a dozen times; but Cong. nonexistent.” 110 Rec. 6549 interpretative An memorandum the bill entered into the Congressional Record Senators Clark and Case14likewise give preferen- made clear that a court was not authorized to require tial treatment to nonvictims. “No court order can hiring, membership, payment reinstatement, admission to or pay anyone against of back who was not discriminated [Title VII]. expressly violation of This stated in the last [706(g)] sentence of section . . . Id., .” at 7214. concerning assurances
Similar the limits on a court’s au- thority provided by sup- to award make-whole relief were porters throughout process. legislative of the bill For example, following passage of the bill House, Republican sponsors published House de- memorandum scribing Referring powers given the bill. to the remedial “Upon the courts con- bill, memorandum stated: employer may enjoin clusion of the trial, the Federal court an organization practicing or labor further discrimination may hiring employee order the or or reinstatement of acceptance reinstatement of a union member. But *18 quotas permit ordering title not VII does the busi- racial added). (emphasis or nesses unions . . . .” Id., at 6566 principal bipartisan sponsors, in manner, like the Senate attempted during newsletter delivered filibuster to each supporting explained “[u]nder that bill, Senator title VII, Commission, not even a much could court, less the order quotas hiring, racial or the reinstatement, admission to mem- 14 bipartisan “captains” Senators Clark and were the Case of Title VII. previously recognized the authoritative interpreta We have nature of their Patterson, 63, tive memorandum. American Tobacco Co. v. 73 456 U. States, (1977). Teamsters United (1982); 431 U. S. 352 582 anyone
bership payment pay for is not dis- of back who against 14465.15 Id., in violation of this title.” at criminated Appeals holding that the District Court’s permissible as a valid Title VII remedial order order was only ruling policy ignores our in Teamsters but the behind not suggests policy in 1972when Congress abandoned this dissent may “any 706(g) § that a court award other it amended to make clear Post, As appropriate. that the court deems at 619-620. equitable relief” prior to proposition the dissent notes that some support for this provided proved that had remedies to those who had not federal courts analysis section-by-section then they were victims. It observes that contrary bill, specific “in sponsors stated that areas where a indicated, present it assumed that the ease law as intention is developed by govern applicability the courts would continue Cong. of Title VII.” 118 Rec. 7167 construction already rejected, however, Congress have the contention that
We codify existing all Title VII brief intended to decisions when made this Teamsters, supra, Moreover, n. statement. See at 39. state- only changed by ment on its face refers those sections not discerning It cannot serve as a basis for the effect of the amendments. changes Finally, impor- and of most were made amendment. analysis, tance, portion section-by-section spon- a later the same explained existing sors their view law and the effect that the amendment on that would have law. provisions give
“The of this subsection are intended to wide courts exercising equitable powers complete discretion their to fashion the most possible. 706(g) § In dealing present relief with the the courts have scope stressed that under that section Act intended of relief whole, make victims discrimination and that the attain- of unlawful objective only upon particular ment of this rests not the elimination of the employment practice complained of, requires per- unlawful but also aggrieved by consequences employ- sons effects of unlawful be, practice possible, position they ment far so as restored where Cong. would have been were it not for the unlawful discrimination.” added). Rec., (emphasis at 7168 Franks, “emphatic we noted in As 1972 amendments evidence con- empowered firmation that federal courts are relief fashion such as the particular may require restitution, making circumstances a case to effect possible S., whole insofar the victims racial discrimination.” U. added). (emphasis *19 § Accordingly, holding 706(g) as a as well. cannot serve sustaining the District Court’s order.16 basis for Finally, Appeals the view Dis- the Court of was of that the City ordered no more than that which the unilat- trict Court erally by way adopting have an affirmative- could done City, public program. employer, action Whether could violating the is an have taken this course without law issue City not decide. The fact that in these cases the we need is such action and that the modification of the decree took no objection.17 imposed over its was agree entered
We thus are unable to either order justifiable effort to the District Court was enforce agreed City or that it terms of the decree which had legitimate decree that be was a modification of the could imposed City Accordingly, on without its consent. Appeals judgment of the Court reversed.
It is so ordered. O’Connor, concurring. Justice presented opinions in
The various views
in the
these cases
procedural posture of the
reflect the unusual
cases and
allocating
of recession and
difficulties inherent
burdens
austerity.
I concur
treatment of these
fiscal
Court’s
rely
authority
District Court’s
Neither does
suffice
remedial
only
§§ 1981
Under
sections relief is
under
and 1983.
those
authorized
Washing
proof
of intentional discrimination.
when there
admission
Davis,
Building
General
Assn. v.
(1976);
ton
Contractors
v.
426 U.
Pennsylvania,
& (1932), properly 114-115 the decree 286 U. S. modified jurisdiction. equity But cannot pursuant the District Court’s be Swift authorizing impose a court to a modification of decree that runs read 703(h) supra, 706(g) §§ statutory policy, n. here see counter Title VII. *20 my separately to reflect under- issues, write
difficult standing and today. holds of what the Court I disposition appreciate issue,
To of mootness the Court’s complete proce- necessary place in their it is these cases agree parties perspective. that the District Court dural The presented Appeals with a “case or and were Court contemplated by controversy” every Ill Art. sense trial-plaintiffs, Respondents, initiated the Constitution. enjoin dispute, preliminarily asking District minority City percentage employees reducing from job Department. various the Fire Pe- classifications within arguing respond- actively opposed titioners that motion, right any ents had in the such relief consent decree waived itself event, reductions-in-force were and, citywide seniority system. applications bona fide against petitioners When held them, the District Court obeying followed and the usual course of prosecuting They appeal. were, unsuccessful however, appeal. on that
Respondents have claim that the cases become moot now on certiorari the em over, to this Court. recession ployees who were laid off demoted have been restored jobs, petitioners apparently their former have no current layoffs. seniority-based judicata need to make res ef fects of the Court’s order can be eliminated District practice vacating Court's usual re decision below and manding with dismiss. United States v. instructions to See Munsingwear, respond 340 U. Inc., Thus, validity preliminary injunction ents concludethat longer significance practical no an issue and the can cases Respondents be dismissed as for moot. See Brief 26-28. agree petitioners respondents I with the Court that wage controversy continue to would be resolved merely vacating injunction. As a result of employees order,
the District black have Court’s several purposes job more of future decisions and enti- they City’s tlements than otherwise would have under the seniority system. seniority gives This added them an expectation promotion, increased of future an increased priority bidding jobs job on certain transfers, and protection layoffs. an increased future These individ- *21 respondent uals, class, who are members of the have not seniority peti- their Therefore, waived increased benefits. significant determining in tioners have a interest those very litigation they in individuals’ claims in which were originally Appeals petitioner- if won. As the Court of noted, employer vigorously implementation does not defend the of system, cope it will have with deterioration employee productivity. morale, unrest, labor and reduced (CA6 1982); 2d n. 12 541, 555, See 679 F. and see also Ford (1982). Motor Co. 458 EEOC, 219, Likewise, v. U. S. 229 petitioner-union discriminatory employment if accedes to it lose both the confidence of its members actions, will bargaining leverage in the determination who should ulti- future) (and mately past bear the of the burden fiscal short- Perhaps ages. explains and n. 5. ante, 571, See this why, respondents’ words, union have “the expended appeal [an] substantial time and effort... which possible win no the individuals on whose behalf can relief for Respondents ostensibly pursued.” has been Brief for 44. dispute a remain and continue to When collateral effects of litigants,1 relationship affect the case not moot. 1 University Camenisch, Texas distinguishable case from This petitioner’s (1981), objections that a 451 U. 390 where Court found preliminary injunction, required pay respondent’s ato which it to for the Camenisch, propriety sign-language interpreter, were moot. issuing preliminary injunction really longer concern to the no parties, interpreter pay the real issue —who should —was Id., cases, In these separate proceeding. better handled in a at 394-398. they continuing have parties relationship, because the ongoing are g., Transportation e. See, Co., Franks v. Bowman U. S. (1976); Engineering Super McCorkle, 755-757 Tire Co. v. 747, (1974); Gray v. Sanders, 416 U. S. 121-125 U. S. (1963). In such not hesi- 368, 375-376 the Court does cases, disposition provide “a tate trial defendants with definitive objections” appeal, City their Educa- Pasadena Bd. of (1976), vacating Spangler, tion v. U. S. because judicata bring the res effects of the decision would not controversy Appeal Note, to a close. Mootness on in the See Supreme 83 Harv. L. Rev. 1677-1687 Court, wisely “[litigants] ju- notes, As the cannot invoke the [the . risdiction of federal court. . and then insulate effects ruling by claiming appellate court’s] review they longer Ante, are no in the at 572. interested matter.”
II My understanding holding of the Court’s on the merits also place history by a in the is aided review of the this case takes parties’ litigation. City entered into consent *22 agreeing respondents, hiring pro- decree with to certain goals, backpay promotions. awards, motional and individual City party an was both to another consent decree to agreement concerning application of the with the union seniority system at time Re- the it made these concessions. spondents negoti- participation did not seek the union’s in the City, of their consent with the did not include ation decree seniority system subject negotiation, and waived the as a rights dispute to seek further relief. the current all When allegation rejected respondents’ District Court arose, the system adopted seniority applied or had been with discriminatory however, animus. It held, “modifi- seniority system’s appropriate because of the dis- cation” was criminatory circumstances, these the effects. Under Court’s itself. Camenisch propriety preliminary interest the relief ex- in the these, parties pressly distinguishes legally “a cases like where retain cognizable preliminary injunc- in the whether interest determination Id., id., properly 394; 397, was granted.” tion at see also at and n. 2. authority conclusion that the District Court had no order percentages Department in is, maintenance of racial my inescapable. view, presented respondents plausible
Had a case of discrimina- application tory adoption seniority animus or system, pressed then would be hard consider entry injunction preliminary an abuse of discretion. happened contrary, here. To But is not what discriminatory rejected District Court the claim of animus, Appeals disagree. did Furthermore, Court of contrary, the District Court’s erroneous conclusion to the Department maintenance of could not be racial balance justified employment policy of an as correction with affirmatively disproportionate impact. unlawful Title VII protects systems, including with bona fide those discriminatory on minorities. Tobacco effects See American (1982); S. Teamsters v. Patterson, Co. U. 431 U. States, United justi- only be
Therefore, the could interpretation of the consent decree fied as a reasonable authority permissible the District Court’s exercise of justification modify decree. Neither that consent present Court, ante, the reasons stated here. For post, at and Justice 574-576, consent Stevens, fairly interpreted decree itself cannot be use bar seniority policy require toor maintenance of racial balances previously layoffs necessary. achieved the event became unilaterally modify can a court Nor district consent decree provide adjust racial imbalances or to retroactive relief legitimate expectations employees abrogates other *23 applicants. v. 443 Weber, 193, Steelworkers U. S. and See (1979); City Spangler, v. Pasadena Bd. Education 205-207 may grant preferential supra, A treat at 436-438. court simply any group group the to to individual or because ment adversely they belong is fide senior affected bona which may powers, system. ity use its remedial Rather, a court only pre- modify including power decree, a consent its compensate vent victims of future violations and identified States, unlawful See Teamsters v. United discrimination. supra, Bradley, 267, v. 367-371; at Milliken 433 U. S. (1977); Regents University 280-281 see also of California (1978) n. 44 265, 307-309, U. Bakke, J., (Powell, Court). announcing judgment the when Even may powers properly remedial are a district court invoked, balancing preferential only carefully award treatment after competing employ- discriminatees, interests of innocent employer. EEOC, 458 Ford ees, and the See Motor Co. v. supra, at S., States, U. at Teamsters v. 239-240; United change significant in short, 371-376. no matter how modify unilaterally circumstance, a district court cannot way adjust consent decree to racial in balances District did here.2 respondents gone to trial sure, 1980,
To be in could have Department’s illegal and established discrimination past hiring practices, specific victims, and identified its possibly obtained retroactive for those individuals. Alternatively, negotiating decree, the consent respondents sought participation union,3 could have negotiated specific union the identities of victims with employer, possibly retroac- obtained forms limited They things. respondents relief. tive But did none of these litigating claims. chose to avoid the costs and their hazards inviting They negotiated employer with the without They participation. decree union’s entered into a consent persuasive the find Unlike the and Justice Stevens, dissenters I analysis of the modifica holding Court’s reasons for Title VII relevant of Title ante, 576-577, application issue, tion n. see and the Court’s controversy. provisions present VII’s to the facts of the . . . cannot alter judicial determination, Company . “Absent . . the R. collective-bargaining consent.” W. agreement the Union’s without (1983)., Workers, Thus, if Grace & Co. v. Rubber 461 U. S. final employees sacrifices required innocent are to be make decree, participation had full they represented consent must be and have rights negotiation process. in the
589 establishing any specific identity. without victim’s most And, importantly, they right their waived further seek relief. respondents properly To allow to obtain relief reserved for only prove identified victims or to their victim status now certainty obligation would undermine the that is a condi- precedent employers’ acceptance tion of, and unions’ con- employment sent to, discrimination settlements. See Steel- supra, concurring) workers v. at 211 Weber, J., (Blackmun, (employers backpay respon- enter into settlements to avoid claims). disparate impact sibilities and to reduce Modifi- requiring cations maintenance of racial balance would not encourage employment valid settlements4 of discrimination They impede cases. Thus, would them. when the Court preferential states that this relief could not have been gone even had this awarded case see trial, 579, ante, holding respondents bargain they during to the struck negotiations thereby furthering consent decree in 1980 and statutory policy voluntary v. settlement. See Carson (1981). Brands, American 14 Inc., 79, 88, 450 U. and n. S. effectively applies the Court tradi- short, the criteria tionally applicable injunctions. preliminary the review Inn, See Doran v. 422 Inc., Salem U. 981 S. disapproves When the Court litigation, respondents
issued in this it does so had because succeeding no chance of their claim. The the merits of Department authority had no District Court to order provide preferential maintain its current racial or to balance 4 not, policy favoring voluntary course, does settlement counte existing employees against nance unlawful applicants. discrimination Co., Transportation See McDonald v. Fe Trail Santa U. 278- S. (Title (1976) prohibit § against VII and U. C. discrimination Weber, blacks); Steelworkers well as whites as 443 U. S. 208-209 (1979) (listing plan attributes that would make impermis affirmative action (Blackmun, id., J., sible); (“[Seniority concurring) at 215 not in cf. training program issue because the craft is new and does not involve abrogation pre-existing seniority rights”). *25 its discretion. On It therefore abused
treatment to blacks. opinion judgment understanding, join rendered I this by today. the Court in the Stevens, concurring judgment.
Justice injunction preliminary re- remains The District Court’s continuing city’s per- effect on the of its viewable because city may injunction policies. “not states that the sonnel That policy apply seniority proposed insofar it will decrease [persons] Memphis percentage Fire black city lay Department.”1 a off Fire if the faces need to Thus, may apply Department employees it its future, in the not system. say I cannot that the likelihood that lay again Department city to Fire will face the need off once city employees has no stake in the is so remote that the litigation.2 outcome this judgment, my
In
discussion of Title VII
Court’s
wholly advisory.
Title
These cases involve no issue under
they
only the administration of a consent decree.
VII;
involve
April 25,
on
Court entered the consent decree
District
including
having given
parties,
peti-
all of the
1980, after
all
opportunity
object
Court,
in this
notice and
tioners
entry.
judgment
like
other final
decree,
The consent
immediately appealable.
court,
v.
district
was
See Carson
(1981).
appeal
Brands, Inc.,
American
There are two which the District Court’s justified. tion could be The first is as a construction consent decree. If the District Court had indicated that merely enforcing was terms of the consent decree, given portion had some indication what of that decree it might interpreting, pressed I be hard to consider the *26 entry injunction of the an abuse of However, discretion. the construing District never it Court stated that was the decree, provide rough portion nor it did even a indication of the simply nothing decree on which it relied. There in the justify injunction record to the conclusionthat the was based aon reasoned construction of the consent decree.5 suggest any The Court seems that a consent decree cannot authorize thing Ante, permissible that would not constitute relief Title under VII. I at 578-579. share Justice Blackmun’s doubts as to whether this 9, post, provisions correct test. See at n. 614-616. The on which the 2000e-2(h) relies, §§ 2000e-5(g), merely Court U. S. C. that state seniority arrangements VII, certain lim do not violate Title and define the appropriate violation, respectively. They relief for a Title VII do place any parties agree limitations on what the can to in a consent decree. suggest any statutory provision Court does not that other was violated by acknowledges the District Court. The Court itself that the administra by decree, tion of consent decree must be tested the four corners of the by respondents prevailed might and not what have been ordered had on the merits, ante, subsequent at which Title all makes its discussion of VII puzzling. the more If predicated finding the decree had been had violated VII, relevant, policies underlying might Title be the remedial that Act at least as an aid to construction of the But since the settlement decree. expressly any finding, exposition VII disavowed such the Court’s of Title unnecessary. law is explains, 607-610, post, at how the decree consent Justice Blackmun justify injunction. nothing could be I in the record construed find justification could exist for the The second that on a likelihood is that the District Court entered it based modify decree, it as an actual modificationof would or explains, post, at 610- decree.6 As Justice Blackmun respondents appropriate if 611, modificationwould have been changed presence had circumstances. demonstrated the only However, found the District “circumstance” city’s layoffs proposed have an would was that employment in fire adverse level black effect on the Cert, department. pp. App. A73- 82-206, Pet. in No. percent- “changed” A76. age circumstance; This not a by Memphis Department employed at Fire blacks the time meant that even then it was the decree was entered apparent seniority-based layoffs have future would finding Thus made adverse effect on blacks. clearly support District insufficient to a modifica- Court was tion of thereof. decree, the consent likelihood
Accordingly, I conclude that the District Court because entering preliminary injunction abused its discretion judgment. issue I in the here, concur
indicating theory actually employed. that this is the District Court I injunction proceedings While recognize are often harried leeway resolving them, affairs and that district courts need substantial *27 something in the nevertheless remains the case that there must be record explaining reasoning may the of the District Court before it be affirmed. 65(d)’s That is purpose requirement the of Federal of Procedure Rule Civil that “[ejvery every granting injunction restraining order an and order shall set forth the . reasons its issuance . . .” 6It likely seems justification that the actual for the this second basis entry of injunction. phrasing question the District Court's the faced was authority modify whether a “it should exercise its Consent Decree,” App. to Appeals’ Pet. for A73. The focus of Court of Cert. the opinion reviewing preliminary injunction upon the grounds was the “three (CA6 which a consent may modified,” decree later be 679 F. 2d 1981). important, Most practical effect of the District action Court’s indicates that it reviewed, should be as a it is treated modification. Until effectively it will govern any procedure city fu must follow layoffs, ture procedure significantly that is different from the system in negotiated signed. effect when the consent decree was
Justice Blackmun, with whom Justice Brennan Justice join, Marshall dissenting.
Today’s opinion troubling is less for the law it creates than ignores. for the law it issues these cases arose out preliminary injunction prevented city Memphis conducting layoff particular particular in a manner. layoff preliminary injunction Because that has ended, no longer any restrains action that the wishes to take. The rejects respondents’ Court nevertheless claim that these cases are moot because the Court concludes that there are continuing preliminary injunction effects from the and that continuing controversy. appears these create a The Court legal continuing the fact oblivious, however, to con- sequences preliminary injunction would be erased simply vacating Appeals’judgment, the Court which is this longstanding practice Court’s with cases that become moot. jurisdiction, Having improperly asserted Court then ignores proper standard of review. The District Court’s only action was a reviewable an on abuse-of-discretion treats the action as standard; Court permanent injunction though the merits, and decides even yet opportunity has had an District Court to do so. ignores specific On merits, facts these inapplicable it relies. cases make decisions which my demonstrably the Court’s Because, view, decision respectfully I error, dissent.
Mootness. “The rule in cases is that usual federal actual controversy appellate stages exist or certiorari re- must simply view, and not at the the action initiated.” Roe date live Wade, the absence of a U. S. controversy, requirement a “case” constitutional “controversy,” deprives a Const., Art. federal Ill, see U. S. *28 jurisdiction. Accordingly, although a live at case, court destroy intervening start, becomes moot when acts party adjudication. DeFunis v. interest of a to the Ode (1974). gaard, the federal situation, S. 312 such a U. judgment practice with a is to vacate the and remand the case Munsingwear, Inc., v. direction dismiss. United States (1950). 340 U. S.
Application principles present is to the cases these underlying straightforward. controversy the suits The city layoff plan Memphis’ proposed violated whether the granted pre- a the 1980consent decree. The District Court liminary injunction limiting proportion Negroes city lay part its fiscal could off as of its efforts solve injunction, city problems. chose instead Because of the according layoff plan to reduce its work force to a modified despite greater under some whites were laid off their which injunc- protected over the blacks preliminary injunction entered, tion. how- Since layoffs taken all have terminated and the has ever, the every pursuant to the modi- back one of the workers laid off plan. preliminary injunction longer Accordingly, fied no city’s relationship and the adverse be- conduct, restrains the gone. concerning propriety opposing parties tween the wholly advisory, ruling A this situation thus becomes ignores duty ‘“to actual con- basic this Court decide by judgment effect, troversies which can be carried into give opinions upon questions and not or abstract moot propositions, principles or to which declare or rules of law ” the matter in in the case Oil cannot affect issue before it.’ (1960), quoting Missouri, 361 U. S. Workers dispo- proper 651, Green, Mills v. 159U. S. judgment remand is to vacate sition, therefore, with directions to dismiss them as moot. cases judgment purpose vacating it becomes moot when awaiting legal relationships while is to return the review parties prior of the suit. The to their status to initiation judgment explained Munsingwear vacating *29 path relitigation
“clears the for future of the issues be- parties judgment, tween the and eliminates a review of prevented through happenstance. which was When procedure rights parties followed, that all preserved; prejudiced by are none is in decision which statutory only preliminary.” scheme was 340 U. S., at 40. procedure in cases, the Court to follow this these
Were clearly legal rights parties should, it of the return would prior entry preliminary injunction. to their status to of the necessary, respond- layoffs In the event that future became injunction ents to a new on would have seek based the facts petitioners presented layoffs, oppose the new could injunction grounds, including argu- the new and all ments in similar to those made these cases. juris-
Struggling controversy on to find a which to base its variety why to these diction, the Court offers of theories as briefly suggests cases remain live. it that the cases First, preliminary injunction are not moot because the continues layoff. My apply effect and would in the event of a future disagreement contention is it in- this that fundamental with preliminary injunction.1 correctly interprets if Even readily injunction apparent preliminary It is from the terms of only contemplated applied layoffs May 1981, it that the union injunction sought layoffs to seek a if stop would have new contem plated preliminary injunction applied only posi in the future. The to the lieutenant, driver, inspector, private which demotions or tions — layoffs —in planned. interpret prelimi then It were makes little sense to this nary layoffs posi injunction apply might future involve different addition, percentage Negroes minimum tions. was “presently employed” positions, retain was that of blacks those layoffs pertinence applied minority no if to future when standard that has Cert, App. employment higher than in 1981. to Pet. for levels would be 82-229, Finally, reasoning grant p. of the District Court in No. A77. injunction ing preliminary expressly based on “the effect of these Thus, Id., lay-offs (emphasis supplied). in rank.” at A78 and reductions preliminary injunction interpretation is cor- Court’s judgment in it is nonetheless true if the rect, however, vacated, these would cases were apply layoff. to a future *30 argument against The second is remark- Court’s mootness injunc- preliminary if able. Court states that even the applies only layoffs, “rulings” formed tion to the 1981 the that “predicate” preliminary injunction undis- “remain turbed.” at 569. The Ante, Court then states: urg- respondents
“[W]e in no that see indication concede ing rulings should mootness that in error and these were contrary, they defend be reversed. To continue require rulings overturned, them. Unless these would City obey to dis- the modified and consent decree seniority layoffs.” regard agreement making future Ibid. aspects argument provoke It is
Two of this comment. readily vacating apparent judgment cases in these “predicate” “rulings” would also vacate whatever formed the thing judgment. simply a for that as There is no such “ruling” independent judgment in that has a life layoff city these cases and that would in future bind the judgment if the The Court’s these cases were vacated. oxymoronic argument, nothing therefore, more than an suggestion judgment res have a would somehow judicata complete contra- if it effect even was vacated—a diction in terms. equally that re- notion
Moreover, and remarkable, is spondents rulings in error were below must concede that the my they argue To moot. before can are that the cases knowledge, nothing mootness doctrine there is in this Court’s requires party urging the lack of concede mootness it is clear that that the District Court viewed the layoffs by May rather than to response problem presented to the problem layoffs generally. purpose Indeed, merit his case. a central of mootness unnecessary ruling doctrine is to avoid the merits. argument against third Court’s mootness focuses on wages seniority employees during lost white period layoffs undisputed of their it is that some such —and pay seniority suggest, were lost. The Court does not today provide however, that its decision will the affected any backpay seniority. any workers with It is clear that backpay such or retroactive for laid-off workers city, respondents.2 would have come from not from city Department But Fire and the union are both petitioners respondents here, adversaries, and have defending liability no interest to the union separate proceeding. in a For reason, these suits wrong parties involve the adverse for resolution of backpay seniority. issues of *31 suggests backpay
The Court, nevertheless,
and
that the
seniority
keep
despite
issues somehow
the
these cases alive
party.
an
absence of
adversarial
The Court states:
judgment
Appeals
the
“Unless
of the Court
re-
layoffs
versed,
the
however,
and demotions were
ac-
quite
cordance with
and it
unreason-
law,
the
would be
expect
City
pay
money
able to
the
to which the
to
out
employees
legal right.
it feel
had no
free to
Nor would
respond
seniority
three
to the
claims of the
white em-
seniority
ployees
competitive
.
who .
. lost
relation to
including
off,
all other
not laid
individuals who were
minority employees
have
those
would
been
who
laid off
injunction.
if
but for the
other hand,
On the
the Court
firefighters
bring
In the event
that
the
were to
laid-off
a successful
city
backpay against
city,
would
action for
the
have no claim for
securing
against respondents
an allegedly
reimbursement
erroneous
injunction.
posted
preliminary injunction,
No bond
for the
and
was
party
injunction
injured
of an
“[a]
issuance
later
to be
determined
W. R.
damages in the
erroneous has no action for
absence of a bond.”
Workers,
Grace & Co. v. Rubber
757, 770,
461 U. S.
n. 14
City
judgment
Appeals’
be free
would
reversed,
wholly
position
respect to
with
back-
to take a
different
(footnote omitted).
seniority.”
pay
Ante, at 571
ambiguity
passage
Although
it
artful
of this
renders
provides
capable
interpretations,
several
none of them
are not moot.
on which to conclude that these cases
basis
may
city
legal
suggest
mean to
that the
has no
The Court
backpay
seniority,
obligation
provide'
and retroactive
but
voluntarily
opines
might
it
so if this Court
that
do
preliminary injunction
improper. A
decision
that
advisory opinion in
full
situation, however, would be
city
require
permit
nor
do
would neither
sense—it
anything
already.
it cannot do
likely
It is more
that the Court means one
two other
may
things.
Appeals’
mean
if the Court of
Court
standing,
preclu-
is left
would have some kind of
decision
backpay
seniority
in a
sive effect
suit for
and retroactive
brought by
against
city. Alternatively,
the union
may
city sought voluntarily
give
if
mean that
backpay
retroactive
union members
respondents
they
could invoke the
lost,
doing
prohibit
so.
they
Even if
of these notions were correct—which
both
clearly
not,
599-601,
are
see
and nn.
infra,
they
question
are irrelevant
of mootness. The
5—
backpay
seniority,
has not filed a suit for
union
nor has the
*32
injunction
preliminary
prevented
city
awarding
the
from
seniority
Accordingly,
retroactive
to the
workers.
laid-off
simply
not in
these issues
are
the cases before the
Court,
bearing
question
no
on the
have
of mootness.
Oil Work-
(1960),
example,
Missouri,
ers v.
By beyond powers, Art. Ill the reach of the Court’s today’s provides advisory improperly opinion decision an city regard city’s ability and the union. With to the to give backpay seniority workers, retroactive laid-off respondents preliminary injunction concede that neither the Appeals’ judgment prohibits city nor the Court -from taking Respondents city action,3 such Brief for 30-31. The any ability has not make claimed confusionover its such simply opinion award; it has to do so. Thus, chosen not today provides city with a decision to that it can ensure something doing do that it has claimed interest layoff city’s policy, preliminary injunction, pre It was the not the seniority accruing during layoffs. the laid-off workers vented their city’s adopted Paragraph “Layoff Policy,” 6B of “Benefits” of the written unilaterally by city April “Employees states: shall not receive seniority during layoff period.” App. If the credit their laid-off work 95. seniority, city ers are to receive retroactive it will be because chooses change policy they always been this have free do—-not —which preliminary Although because the has been invalidated. matter, ante, feigns uncertainty at this n. as does Justice ante, separate opinion, simply in her there is no 584-585, O’CONNOR give indication in these cases that the wants to laid-off workers retroactive but is unable do so because of the injunction.
600 doing, respondents prevented that from
has not been stopping. they way concede have no imagined regard contro- union,
With to the the Court’s versy hypothetical. that is concedes even more Court any possesses en- there is the union whether, fact, doubt rights a con- couldform the basis of contractual that forceable city.4 against It is also unclear tract claim union the the injunction propriety preliminary would affect how the city’s In no the a such event, defenses in such suit.5 they enjoys any rights all, It appears contractual that if the union Understanding” union and derive from between the the “Memorandum seniority. city, the layoffs that shall be made basis of which indicates on Cert, App. 82-206, Supreme p. to in No. The Tennessee Pet. for A81. confirmed, however, recently the Memorandum of Under has Firefighters standing rights, v. Assn. confers Fulenwider no enforceable (1982), Local 178U, of state-law limits on Union 649 S. W. 2d because Thus, organizations. the authority municipalities to contract with labor it likely backpay filed suit for is reason that the union has not because has rights. no enforceable suggestion
I
trying
am at
somewhat of a loss
to understand
Court’s
injunction
prevented
con-
preliminary
somehow
District Court’s
city
tract liability
arising
employ-
and the affected white
from
between
injunction
ees.
explained
fully infra,
preliminary
As is
did
more
require
injunction
city
lay
anyone.
merely pro-
off
city
laying
proportion Negroes.
hibited the
off more than certain
constraint,
layoffs
city
proceed
the face
with
of that
decided
lay
doing
city
off
protected Negroes.
If in so
whites instead of
rights
rights
employees,
breached contractual
of the white
those
remained
Workers,
enforceable. See
R.
Co. v. Rubber
601 today’s provided claims have filed. Thus, been decision is theory might city that it affect a defense that the has not brought, in suit asserted, that the union has not to enforce rights may contractual that not exist. justiciable controversy there is no
Because now in these today’s improper cases, decision the Court is an exercise judicial power. my purpose parallel It is not in dissent speculate appropriate disposition the Court’s error and on the arriving nonjusticiable of these In result, cases. at its how- analysis misleading many ways, ever, is the Court’s ways simply Accordingly, important
other error. it is unexplained departures precedent to note the Court’s from and from the record.
A Assuming, arguendo, justiciable, that these cases are then only question validity 'prelimi- the Court is the before nary injunction prevented city conducting layoffs Negroes would have reduced number job categories Memphis Department. within certain Fire granting required relief, such the District Court respondents’ merits, consider likelihood on the success irreparable parties, harm balance of injunction to the and whether the. public University be in the would interest. (1981); Texas v. Doran Camenisch, U. S. question Inn, Inc., Salem The U. S. be- reviewing simply fore court “is whether issuance injunction, light applicable standard, in the constituted Id., abuse of discretion.” at 932. question.
The has answer a different Court chosen to opinion Court’s does not mention standard for a review preliminary injunction, apply does not standard appeal opposed city’s obey obligation when entered. they if treats the cases as Instead,
these cases. Court question 'permanent injunction, and addresses involved a city’s layoffs proposed violated the consent de- whether the in the District cree.6 That issue was never resolved press for a final decision on the mer- because the did not properly this issue, therefore, before Court. its. taking controversy longer jurisdiction that no over a After *35 decision that was never made. the Court reviews a exists, precisely doing, Camenisch, what in In the Court does so unanimously supra, error. in- concluded was Camenisch preliminary a student a volved a suit which deaf obtained University pay injunction requiring of Texas for an appeal interpreter him in his studies. While to assist injunction preliminary pending before the Court of the was Appeals, graduated. Appeals the student Court doing, appellate In District so the court affirmed the Court. injunction attempt preliminary a The Court’s to recharacterize the injunc- permanent wholly unpersuasive. Respondents’ request for one is injunction, carefully specifically sought preliminary a laid tive relief injunction. App. 20-22. Pe out the standards for the issuance of such response opposition request injunctive to titioners’ the for relief was de entirely explaining preliminary injunction voted that the standards for Id., granting not been met. The District Court’s order had 25-28. Preliminary Injunction,” Granting relief was injunctive entitled an “Order positions expanding injunctive a later order relief include more Preliminary Injunction.” App. to Pet. Expanding an “Order was entitled Cert, 82-229, A77, expressly pp. Appeals in No. A82. The Court of for inquiry stating: of its the nature defined strong possibility weigh plaintiffs whether the must have shown “We merits, plaintiff defendant would suffer on the whether the success injunction. public whether the interest warrants
irreparable harm and review is whether the district court abused appellate . . . The standard injunction. granting preliminary discretion in granting prelimi- abuse his discretion Judge] did not “[The District 1982). (CA6 nary injunction.” 679 F. 2d It that the issue imagine is hard a clearer statement considered injunction. preliminary of a Appeals propriety Court of event, beyond scope Appeals appropri- if went of its even the Court of duty error, review, ate it would to correct that follow it. be our rejected suggestion graduation Camenisch’s that his ren- required dered the case moot because the District Court had post granting preliminary Camenisch to a bond before injunction, there remained issue whether the Univer- sity interpreter. or Camenisch bear should the cost granted This Court certiorari and vacated and remanded the explained: case to the District Court. Appeals correctly
“The Court of held that the case as a moot, since, whole is not noted, as that court it remains ultimately to be decided who should bear the cost of the interpreter. However, issue the Court before Appeals pay interpreter, was not who should but for rather whether the District Court had abused its discre- issuing preliminary injunction requiring tion in University pay him. . . . The two issues are significantly since whether the different, depended should issued have on the balance injunctions], granting preliminary [for while offactors University ultimately whether the should bear the cost *36 interpreter depends on a the resolution of final of merits case. Camenisch’s of place, [a merits] it taken would
“Until trial on the has inappropriate this Court to intimate be view for S., the lawsuit.” 451 U. on the merits (emphasis at 398 of added). party’s a Camenisch makes clear that determination a preliminary injunction separate entitlement to a a issue party’s underly- from the determination of the merits ing legal reviewing claim, and that a court should not confuse presented preliminary if the two. Even the issues injunction only in these cases moot, therefore, were propriety preliminary be the issue before this would injunctive Liquor relief.7 New York State Au- See also stages of a preliminary injunction The distinction between the and final pressures involved proceeding is more than mere formalism. The time thority (1981); v. Bellanca, 452 U. S. Doran v. Inn, Inc., Salem S., 931-932, true, U. It is 934. Appeals that the District course, Court and the Court of had preliminary respondents’ amake likelihood evaluation provides on the merits, success but that evaluation no basis deciding for the merits:
“Since Camenisch’slikelihood of on the merits success one of the factors the District the Court of Court and Appeals preliminary granting considered Camenisch injunction, might suggested it be decisions that their underlying were tantamount merits to decisions on the preliminary-injunction thus and is not issue truly reasoning . however, moot. . . This because fails, ‘likelihood, improperly equates it ‘suc- with success’ ignores important, cess,’ and what more because significant procedural preliminary between differences (empha- permanent injunctions.” S., 451 U. at 394 added). sis request preliminary injunction for a determina- require to make courts
tions without the make all briefing aid of full development, or factual necessarily provisional. proceedings such determinations Like Camenisch, charac- litigation those this haste “bear the marks ” S., request preliminary teristic of a at 398. The injunction. U. layoffs hearing injunction days on the after four was held day deposition had exception single been announced. With the of a hearing, the hearing, opening before the discovery. there was no hearings cen- judge problems trial noted: “One of the with these develop time lawyers ters around the fact that usual don’t have the information, issues, and to call on discovery, exchange and take got I an idea other to state what each they think the issues are.... finally on what route lawyers they am not sure that decided were —I *37 Court they going . .” the District made App. were . . It is true that 30. findings conclusions, generously few of what as could be described “findings of fact and con-
but, out, Camenisch pointed the Court injunction are not preliminary granting clusions of law made a court Accordingly, S., at there is binding on the 395. at trial merits.” U. legitimately can decide the simply proper this Court no basis which layoffs city’s violated the consent decree. question proposed the whether B ignoring appropriate After the of review, standard the Court then focuses on an issue that is not these cases. It begins analysis by stating at “issue the heart of power injunc- “ente[r] this case” is the District Court’s an requiring employees tion white to be laid off.” Ante, 572. respect, simply That with all statement, incorrect. On its preliminary injunction prohibited city face, the the conducting layoffs seniority system in accordance with its percentage [pres- “insofar as will decrease of blacks ently employed]” job categories. App. in certain to Pet. for Cert, p. preliminary injunction in No. 82-229, A80. The did city require lay employees off white In at all. parties including fact, several suit, interested in the attempted persuade city layoffs union, to avoid entirely reducing working Depart- hours of all Fire employees. Respondents ment See Brief Thus, for 73. al- though city’s options the District Court order reduced the meeting require crisis, its fiscal it did not dismissal employees. layoff plan of white The choice of a modified city. remained that of the important
This factual detail makes clear that because it abrogate did not contractual rights employees. layoff plan pro- of white If the modified posed by comply District with the Court’s order abrogated rights rights union, contractual those recognized principle remained enforceable. This this just Term in v. Rubber Workers, last W. R. Co. Grace & (1983), presented remarkably U. which situation employer sought similar In case, one here. layoffs to conduct and faced a conflict between a Title VII agreement protecting employees conciliation its female seniority rights employer employees. of its male lay grievances employees, off male chose to who filed rights. obtained awards the violation of their contractual upholding explained awards, this Court *38 employer did not render the male dilemma faced rights employees’ unenforceable: contractual Company’s force, reduce its work “Given the desire to Company it was faced with di- is undeniable agreement man- followthe conciliation lemma: could liability risk the District and under the dated Court collective-bargaining agreement, or it could follow the agreement contempt bargaining risk citation both liability. dilemma, however, Title The was of VII making. Company’s Company committed own conflicting voluntarily obliga- to two contractual itself at Id., tions.” 767. the correctness of the therefore,
It is District clear, interpretation respect of the decree is irrelevant with Court’s enforceability rights; to the the union’s contractual those rights regardless whether the remained enforceable obligation lay question off had blacks.8 authority these remains whether the District Court’s cases pursuant enjoin layoff to the consent decree enabled it more than a certain number blacks. The issue is not lay require city to whether the District Court could off abrogate or whether the District Court could contrac- whites, firefighters. rights tual of white
l-H h—I HH Assuming, erroneously does, as the Court that the District permanent injunction, question entered a on re- authority view then would the District be whether Court had affirming Court, to enter it. the District the Court of Appeals suggested grounds respond- on least two which might prevailed ents have the merits. on part Judge opinion concurring part dissenting Martin’s 2d, point. the Sixth F. precisely Circuit’s this decision is based See at 569.
A first these derives from the contractual characteris tics of a consent decree. Because a consent “is be decree to purposes basically for contract,” construed enforcement as a Baking ITT United States v. Continental Co., U. (1975),respondents right performance specific had the to layoffs proposed of the terms of the If the decree. violated terms, those could re District Court issue an quiring compliance Alternatively, with them. the Court of Appeals equity power noted that a court of has inherent to modify light changed a consent decree in circumstances. (CA6 1982). respondents F. 2d 560-561 if Thus, changed justified could show that circumstances modification authority decree, the District Court would have to change. a make such
Respondents injunctive request pri- based their for relief marily grounds, analysis the first on of these and the Court’s unpersuasive. authority of this issue District Court’s purposes to enforce the terms and of the consent decree was ¶ expressly reserved in 17 of the decree “The re- itself: jurisdiction may tains of this action for such further orders necessary appropriate purposes be to effectuate this Cert, App. p. in decree.” Pet. for No. A69. Re- 82-229, spondents provision seeking preliminary on in relied injunction. Supplemental in See Plaintiffs’ Memorandum Preliminary Injunction obligated Support a 1. The decree provide specific particular certain relief to individ- goal pursue long-term repre- and to to “raise the black uals, job department on the sentation each classification fire approximating proportion to levels the black of the civilian Cert, Shelby County.” App. to Pet. for labor force p. specific goals for 82-229, No. A64. The decree set more hiring promotion opportunities as well. To meet these goals, “require[d] good reasonable, faith efforts the decree part City.” Ibid. injunction, support request re- of their layoffs adversely spondents proposed would claimed that the proportion represen- significantly their affect blacks out Support Supplemental Memorandum tation. Plaintiffs’ They argued Preliminary Injunction, pp. that the 1-2. gains proposed “designed layoffs made were thwart argument 2. Their em- Id., at blacks” under the decree. phasized Mayor discretion choose had “absolute layoffs, job affected which were to be classifications” by Mayor ibid., for demotion and that the “ranks chosen represented greatest num- are in the those where blacks are layoff Respondents ber.” 4. claimed that such a *40 Id., at plan spirit Id., of the 1980Consent Decree.” at “violates the prove charges respondents 3. Had been able to these city’s they may trial, of the have constituted violation well obligation good faith under the decree. On the basis of presented hearing these limited evidence at the the claims, prior preliminary injunction, to the of the and the issuance familiarity city’s past District behavior, Court’s with the the enjoined laying District off blacks where Court percentage the effect of black would have been reduce the representation job categories. By treating in certain permanent District however, as a one, Court’s respondents deprives opportunity Court first to sub- having stantiate for then faults them failed claims, these determining allegations to do so. But without whether these way simply have there is no to determine substance, layoff plan proposed whether the violated terms consent decree. pro- respondents if
Even not have could shown layoff posed plan obligation good city’s with the conflicted ¶ empowered faith, 17of the decree the District also purposes” enter orders to “effectuate the of the decree. layoffs if the Thus, would District Court concluded that the empowered purposes, frustrate those then the decree again, appropriate District Court to enter an Once order. on the however, limited factual record Court, before the it is improper speculate layoffs about whether the would have gains frustrated made under the consent decree suffi- ciently justify permanent injunction. rejects argument injunctive
The Court that the relief proper power purposes awas exercise of the to enforce the principally ground remedy agreed the decree on the upon lay- specifically consent decree did not mention Ante, offs. at 575. This treatment of the issue is inade- quate. power The of the District Court to enter further or- purposes part ders to effectuate the of the decree was a of the agreed remedy. parties negotiated it is this, and obligation give meaning. courts an ideal requiring world, a well-drafted consent decree structural change might providing explicit succeed in directions for all contingencies. particularly rights litiga- future But in civil implementation tion which of a consent decree often takes years, foresight .Accordingly, parties such is unattainable. typically agree upon supervising to a consent decree to confer authority purposes courts the to ensure that a decree scope are not frustrated unforeseen circumstances. authority principally depends such an individual case upon parties. light, the intent of the Viewed this recourse *41 “purposes” to such broad notions as the a is not of decree rewriting parties’ agreement, part a of the rather a of but attempt implement to the written terms. The District negotiation Judge presided cases, these who over the of position unique in a decree, consent determine the original parties’ intent, nature and he a has distinctive familiarity shaped with the circumstances decree and Accordingly, purposes. given he defined its special should be general interpret ambiguous deference to response simply terms in the It is not a sufficient decree. not as Court could conclude, does, the Court the District layoffs enjoin proposed merely layoff plan because were specifically not in the decree. mentioned consent regard, it nature of the In this is useful to note limited injunctive prelimi- ordered the District Court. relief embody nary injunction did a conclusion that seniority layoffs never in accordance with its could conduct preliminarily enjoined policy. a the District Rather, Court system particular application seniority a a of the for basis layoffs. particular the District set of Whether Court would depend enjoin layoff presumably fac- a future would on the layoff tual circumstances of that situation. Such a future presumably proportion of would affect a different blacks representation Department Fire whites; the black presumably layoffs presumably higher; the would be would negate portion gains decree; smaller made under the judge parties imple- would have worked with the menting longer period no the decree for a of time. There is way knowing whether the District Court would conclude layoff seniority that a future conducted on the basis of would sufficiently purposes justify of the an frustrate decree injunction. wrong reason, the For this Court is to attach significance such to the fact that the consent decree does not provide suspension system during all layoffs, is not for that what the District Court ordered these cases.
B Appeals suggested respondents also prevailed layoffs have could on the merits because the 1981 may justified have a modification of decree. the consent frequently recognized “power This Court has the inherent equity modify adaptation court though changed conditions was entered consent.” (1932); Co., & 286 U. United S. States Swift City Spangler, Board accord, Pasadena Education v. (1976); U. United States v. Machin- United Shoe ery Corp., 391 U. S. “The source of the *42 power modify is of course the fact that an often requires by issuing continuing supervision court and always continuing willingness apply powers its
611 processes party equitable on behalf who obtained that Railway Employees Wright, v. relief.” 364 U. S. 647 (1961). ruling plaintiff’s request The test for on a afor modi- change serve[s] is fication of consent decree “whether the purpose original . . effectuate . the basic of the consent Chrysler Corp. States, decree.” v. United 316 U. S. 562 rejects ground affirming
The Court this injunction, by examining purposes of the consent de- proposed layoffs justified cree and whether the a modification by of the but rather reference decree, to Title VII. The preliminary injunction Court concludes that im- was proper “imposed parties adjunct because it on the as an something settlement that could not have been ordered had gone plaintiffs proved pattern case trial and the that a practice Ante, discrimination existed.” 579. Thus, at propriety prelimi- the Court has chosen to evaluate the nary injunction by asking type what of relief the District litigated respondents Court could have awarded their had prevailed Although Title VII claim on the is merits. it right question,9 far from that is it is clear whether clear given wrong answer. that the Court has analysis premised The Court’s seems be the view that a consent provide decree cannot relief could not be obtained at trial. In ad dressing analysis, imply I accept the Court’s do not mean to that I Weber, premise In Steelworkers (1979), as correct. 443 U. S. this plan adopted voluntarily whether an considered affirmative-action by employer against VII violated Title because discriminated whites. holding plan lawful, that the that the Court stressed voluntari Id., plan inquiry. 200; ness of the informed the nature of its at see also id., (concurring opinion). Because a is an agreement consent decree court, qualities it has enforceable both voluntariness and com pulsion. explained Congress encourage Court has intended to Brands, Inc., v. American voluntary suits, Carson settlement of Title VII 79, 88, (1981), cooperative n. 14 private efforts to eliminate U. Weber, S., lingering past effects discrimination. U. at 201-207. therefore, clear, permissible scope It no means relief avail able under a consent decree is the same as could be ordered a court after finding liability at trial. *43 612 prevailed respondents on Title claims
Had their VII provided available would have been those trial, remedies §by 706(g), §2000e-5(g). section, 42 Under that U. S. C. employer VII court that that an has violated Title determines may “enjoin respondent engaging in unlawful such practice, employment such action as and order affirmative may appropriate, may include, to, be which but is not limited hiring employees, back reinstatement or of with or without equitable pay , or as the court deems other relief added). (emphasis scope appropriate” relief that they respondents had could have been entered behalf of depends prevailed of relief at trial therefore on the nature “appropriate” remedying that is Title violations. VII determining “appropriate” under In the nature of relief §706(g), distinguished relief have individual courts between Although and race-conscious class relief. overlooked highly Title VII Court, this distinction is In a relevant here. type brought by respondents, an indi- of the class action only plaintiff is to an relief vidual entitled award individual if he he can establish that was the victim of discrimination. princi- requirement grows general equitable That ples of the out no of “make has relief; whole” an individual who suffered injury is not Teamsters entitled an individual award. See (1977). If v. States, 324, 347-348, United 431 U. S. 364-371 shown, is entitled however, victimization an individual seniority, backpay, promotions are whatever retroactive goal making whole. consistent with the statute’s the victim Transportation 747, v. U. S. Co., Franks Bowman 762-770 Appeals unani- are actions, Title VII class Courts
mously relief affirmative view that race-conscious University § “appropriate” 706(g).10 be See can also under Beecher, NAACP, g., Chapter, e. Boston Inc. F. 2d v. 10 See Rios v. Enter- (CA1 (1975); 1974), denied, 421 1027-1028 cert. U. S. (1978) Regents Bakke, U. S. 301-302
California
J.);
(opinion
(opinion
id., at
n. 28
Powell,
Bren-
JJ.).
pur-
nan, White, Marshall,
Blackmun,
pose
any particular
of such
relief not make whole
individ-
*44
remedy
present
ual, but rather to
of
classwide effects
past
prevent
discrimination or to
similar
discrimination
sought
future.
Because
discrimination
to be alleviated
by
past
relief
race-conscious
is the classwide effects of
against
discrimination, rather than discrimination
identified
provided
of
class,
members
such relief is
to the class
aas
may
whole rather
than
its individual members.
relief
many
frequently
take
but in
forms,
class actions it
involves
percentages
as those contained in the 1980consent de-
—such
city
respondents
require
cree between the
race
—that
employer
promotes
be taken into account when
hires or
employees.
distinguishing
feature of race-conscious
disadvantaged
relief is that no individual member of the
class
it,
has a claim to
and individual
need
beneficiaries of the relief
they
the dis-
show
were themselves victims of
granted.
crimination
the relief
for which
respondents’ request
In the instant
cases,
request
awards of
did not include a
for individual
implication
contrary
of
retroactive
and,
to the
—
any
opinion,
Court’s
the District
not make
such
Court did
(CA2
638,
prise Assn.
Local
622,
1974);
629
EEOC
501 F. 2d
Steamfitters
cert,
(CA3
,
v. American Tel. & Tel. Co. 556 F.
167,
1977),
174-177
2d
de-
Service,
States Postal
nied,
(1978);
Chisholm United
438
S. 915
v.
U.
665
(CA4
City Alexandria,
482,
1981);
States
F.
v.
United
2d
499
614 F. 2d
(CA5
W.,
38,
v. 7. B. E.
1358,
1980);
United States
Local No.
1363-1366
(CA6),
denied,
(1970);
Because these cases place, it never taken course trial on the merits has impossible nature of for the Court to know the extent and city. any past this to the reason, discrimination For depend scope appropriate upon extent relief would impossible to determine whether trial, the facts found preliminary injunction provided would have relief following appropriate a trial on merits. been Neverthe- *45 says injunction preliminary inap- less, the that the Court propriate respondents it could have because, concludes, not litigated had their instead obtained similar relief cases been consent decree. settled logically from its The Court’s conclusion does follow points analysis. out, As the Court the consent decree own brought by respondents alleging, arose out of Title VII suit pattern prac- city engaged in a and inter had alia, plaintiff against class. tice of discrimination members of plaintiff, the named claimed that he and the class Stotts, Mr. represented promotions he had members that been denied solely because of and that because of that discrimina- race, he and other class had their tion, members been denied Memphis Department. rightful rank in the Fire See Com- ¶¶9 plaint Respondents App. 10. 82-229, No. respondents’ actually proceeded therefore, trial, Had case to procedure two-stage it would the now familiar have involved stage established in Teamsters and Franks. first would engaged have been a trial to determine whether the had proceed in unlawful if to discrimination; so, the case would stage, during second which the individual members opportunity they class would have the establish that were to Teamsters, victims of S., discrimination. U. at 375. correctly itself indicates: “If individual members of plaintiff they class demonstrate that have been actual victims they may discriminatory practice, competi- of be awarded seniority given rightful place seniority tive their on the respondents prevail Ante, roster.” at 578-579. Were to at they trial on their claims of discrimination, therefore, would including been relief, have entitled to individual awards of seniority. appropriate treating Thus, retroactive even granted if District Court’s indi- vidual awards of retroactive to class members, it respondents they gone might is relief that have had obtained settling to trial instead of their claims of discrimination. logic the Court’s conclusion is own Thus, by refuted its very cases which it result.11 on relies come explained, opinion For reasons never has Court’s fo- entirely respondents actually in- shown, cused what have they might stead of what have shown had trial It is ensued. improper respondents failing and unfair fault to show protected layoff “that of the blacks had been a vic- simple tim for the discrimination,” ante, reason showing the claims on which such a would have been made point went trial. The never whole consent decree point most Title these cases—and indeed the VII consent parties expense decrees—is for both to avoid the time and sufficiently opinion ambiguous suggest in 11 TheCourt’s another *46 preliminary injunction that terpretation. The Court concludes was they improper gave respondents something because it could not have pattern they proved practice that of obtained had “a or discrimination Ante, therefore, possible, sug at 579. It is that the is existed.” gesting relief that the limit on available under consent decree that plaintiff prevailed in I” “stage could be if a of a case but which awarded proceed “stage during plaintiff identify to II” failed which the seeks to provide any discrimination. But the actual victims of Court has failed opinion support underlying for odd The seems to this notion. rationale power of be that the limit the District Court’s remedial is that which could following alleged discrimination, just a trial on the have been ordered stage such a trial. the first liability identifying
litigating question the victims decree, the ex- In the instant consent discrimination. pressly engaged having all. discrimination at denied provided in these cases Nevertheless, the consent decree By backpay. persons promotions and defi- several with both persons never determined to be nition, all such relief went not indicate discrimination, victims of Court does suggest original consent decree that means Any suggestion these that consent de- cases invalid. was only liability provide cree can if a defendant concedes relief drastically for enter- reduce, course, would ing the incentives result be incon- into consent decrees. Such a would gruous, given past “Congress statements the Court’s expressed voluntary strong encouraging preference for employment Carson settlement of discrimination claims.” (1981); Brands, n. 14 Inc., 79, 88, American 450 U. S. see Co., Alexander v. U. S. Gardner-Denver at a more Court’s reliance on Teamsters mistaken general Teamsters well, level as because was concerned with concerned exclu- individual whereas cases are relief, .these sively Teamsters arose classwide, with race-consciousrelief. pattern-or-practice out alleging two suits filed Government employer had that a union and an discriminated against hiring finding truckdrivers. Prior to a minorities liability, into entered a consent decree Government partial decree, resolution of the suit. defendants agreed variety to a actions, of race-conscious remedial includ- ing requirement company Negro h hire “one Spanish-surnamed every person” person until a white minority representation percentage certain achieved. was 431 U. 4. S., n. not settle the decree did 330-331, claims of members, individual and allowed the however, class individuals whom the found to be victims of discrimina- court appropriate tion seek whatever retroactive under Title VII. Ibid.
In Teamsters, therefore, all claims had been set- classwide before the tled case reached this Court. The case concerned *47 only problems determining nature of victims and the of appropriate individual relief. Teamsters did not consider appropriate the nature of affirmative relief class that would provided have been available had such relief not been parties. pres- consent decree The in the between issue posed just cases, ent Court, the reverse. Re- spondents requested seniority, have not individual awards of preliminary injunction and the made none. Thus, issue appropriate scope in these cases is the of classwide relief—an present in Teamsters issue not when that case came here. Teamsters therefore has little relevance for these cases. to buttress its Court seeks reliance on Teamsters § stressing 706(g). on the last sentence That sentence “hiring, states that a cannot order the reinstatement, court promotion employee or of an individual as an ... if such employment . . . or advancement or individual was refused discharged suspended reason than other discrimination” in of Title VII. nature violation is unclear, however, Court’s reliance that sentence merely “ig- because Court states that the District Court § “policy 706(g).” nores” the behind 579. Ante, 582-583, appears For several that the Court re- reasons, however, §706(g) policy only particularized making on the lies concerning granted in cases, conclusion the relief these availability general rather than a conclusion about remedies. race-conscious §706(g), discussing passages relies on the Court several legislative history Rights of the Civil Act of
from the legislators individual stated their that Title VII which views imposition upon would not authorize the remedies based many in Con- race. And while there are indications that gress opposed remedies, at the time the use race-conscious authority supports interpretation there narrower §706(g). interpretation, the last sentence of Under that § plaintiff 706(g) only in which addresses the situation engaged employer in unlawful demonstrates that an has particular employer can that a discrimination, but the show *48 618 job, promotion, have or
individual would not received in the because reinstatement even absence of discrimination justification there a lawful for the action. Pat was also See terson v. F. 295 50, 696 293, Greenwood School District 2d (CA4 1982); American Tel. & Tel. 556 F. 2d Co., EEOC v. (CA3 (1978); 1977), denied, 174-177 S. 915 cert. U. Day App. D. C. 530 F. 2d Mathews, 231, 233, U. (1976);King Union, 1083, 1085 v. Laborers Int’l Local No. (CA6 1971). 443 F. Brodin, 2d 278-279 See also The in the Title VII Ac- Standard Causation Mixed-Motive Policy Perspective, tion: A Colum. Rev. 292 Social L. (1982). example, provision, prevents for a court from granting employment part relief an is where decision based upon applicant unqualified job but race, where is for the nondiscriminatory In that sense, for reasons. the section merely prevents ordering employer a court from to hire unqualified nothing job, has someone to do with prospective classwide relief. legislative history supports
Much of the this view. What 707(e) § §706(g) origin now R. 7152, had its of H. 88th Cong., original prevented 1st Sess. That version granting court from relief that had to someone been refused employment, promotion, discharged denied “for cause.” provision presumably The “for cause” referred to what an employer particular must show to establish that a individual given language by not be should relief. That was amended replacing any “for cause” with other than “for reason dis- religion on account of race, color, crimination or national ori- gin,” passed version of the which sentence as original House. author of version and the amend- only purpose explained ment that the amendment’s was clarify specify court and to cannot find viola- cause, upon facts other than tion Act is based unlawful (1964)(remarks Cong. Rep. Rec. 2567 discrimination. Celler). There no indication whatever the amend- prohibition ment was intended to broaden include all prospective forms relief. race-conscious § 706(g) Equal Employ- event, was amended Opportunity legislative ment of 1972, Act 86 Stat. 107. The history strongly supports of that amendment the view that Congress endorsed the remedial VII. use race under Title language The amendment added to the first sentence of §706(g) authority to make clear breadth of the remedial of the courts. As the first amended, sentence authorizes a may appropri- court to order “such affirmative action as be *49 may ate, include, to, which but not limited reinstatement hiring employees, pay any or of with or without ... or back equitable appropriate.” other as the court 42 deems relief 1972). §2000e-5(g) (emphasized language in U. S. C. added during In addition, consideration of the amendment, Con- gress specifically rejected attempt an to amend Title toVII prohibit prospective employment the use of race-conscious goals remedy proposed to discrimination. Senator Ervin an prohibit amendment VII to Title intended Government requiring agencies employers adopt goals quotas hiring Cong. for the of 118 1663-1664 minorities. Rec. (1972). against amend- Senator Javits led the debate Significantly, ment. Javits Id., at 1664-1676. Senator only affect not the activi- stressed the amendment would scope judicial agencies, of ties of but also the reme- federal repeatedly He Title VII. referred dies available under ordering race-conscious and remedies, decisions asked court printed Congressional such decisions be two explicitly Id., Record. at 1665-1675.12 He stated his view 12 Congressional Record were United States placed The two eases in the (a (CA9) v. Ironworkers Local goal 544 percentage 443 F. 2d for black violation), participation apprenticeship program part remedy Title VII and Contractors Association denied, (1971), 404 S. 984 t. U. cer Labor, 442 (CA3) Pennsylvania Secretary Eastern (upheld v. F. 2d 159 federally plan requiring projects of a lawfulness contractors on assisted cert, (1971). minority employment), denied, adopt goals for 404 U. practice seeking Department’s Senator noted the Justice Javits also percentage hiring goals. containing in Title eases consent decrees VII (1972). Cong. Rec. 1675 “[w]hat . . this amendment seeks do is to . those undo court 1665. The was re- Id., decisions.” amendment jected margin. at 1676. Id., 2-to-l knowledge, therefore, clear courts’ of race- With use patterns discrimination, conscious remedies to correct Congress rejected attempt to amend Title VII to prohibit fact, such remedies. Conference Committee any it- stated: “In area where the new law does not address specificcontrary is not self, or areas where a intention present assumed that as devel- indicated, was case law oped by govern applicability the courts continue to would Cong. Title and construction of VII.” Rec. 7166 Relying legislative history on this 1972amendment Members courts, other actions the Executive and the four including today’s opinion, Court, of this the author of stated University Regents Bakke, 438 U. S. of California (1978): judicial, congressional n. 28 “Executive, conclusively subsequent passage action of Title to the VII use established that the Title did not bar the remedial (opinion race” of Brennan, Black- White, Marshall, *50 JJ.). supra, moreover, has observed, As been n. 10, mun, Appeals unanimously race- are Courts of the that view prohibited by consciousremedies are not Because Title VII. opinion acknowledge consen- Court’s does not even this it sus, seems clear that the Court’s conclusion “ignored § policy” 706(g) District statement is a cases was race-conscious relief these ordered necessary, relief is broader than not that race-conscious appropriate never under Title VII.
> By dissenting, glibly suggest Dis- I do not mean necessarily preliminary injunction correct. was Court’s trict no contractual Because it seems that the affected whites have layoff plan, rights city’s were modified breached pain preliminary injunction to shift was the effect of the employees. city’s This fiscal crisis onto innocent Court has before the com- recognized difficulty reconciling nei- claims of innocent who themselves are peting employees it. ther the discrimination nor the victims of perpetrators “In devising and remedies under Title no implementing VII, decree, less than court must formulating equitable draw on the mercy practicality have ‘qualities [that] made instrument for nice adjustment and reconcilia- equity tion between interest and needs as well as public private Teamsters, S., between claims.’” 431 U. competing private Hecht Co. Bowles, 321 U. 329-330 quoting If the District preliminary injunction Court’s was it was it correctly because proper, interpreted original decree, intent of the to the consent parties equitably enforced that intent what was a zero-sum sit- admittedly If it it wrong, uation. was because inter- improperly decree, way the consent or because a less preted painful was within the court’s reconciling competing equities in- case, either the District Court’s power. months I many terminated the Court’s junction ago, regret controversy. upon unnecessarily past insistence reviving