UNITED STATES of America, Plaintiff-Appellant, v. CITY OF ALEXANDRIA Et Al., Defendants-Appellees

THORNBERRY, Before GOLDBERG GEE, Judges. Circuit GOLDBERG, Judge: Circuit case, companion This case and its Miami, City 614 F.2d 1322 States today, present also decided diffi- troubling concerning the questions cult interrelationship discrimina- of “reverse action, tion,” principles and the affirmative consent decrees. Most governing in is contained opinion substance of our repeat it here. and we do not Rather, the relevant adopt refer opinion. of Miami This portions of our own, few wrinkles of present case does separate and are require discussion fully herein. addressed Rights Act of Background VIII the Civil I. Factual to 2000e-17. U.S.C. 2000e §§ November, 1976, an Attor- Assistant Rights ney in the Civil Division of General partial con- Along complaint, with the of Justice wrote a letter to Department filed, already signed was sent decree2 Attorney General State Louisi- representatives United the States ana, informing him the results of an government municipal and the defendants.3 Department the of Justice investigation spelled great plan in a It out detail practices municipal into the and women would not be insure that blacks parish police departments and fire and in unlawfully against in the fu- discriminated spelled the of Louisiana. That letter State ture, remedy disadvantage of any and to composi- out the and sexual in detail racial and which have blacks women resulted municipalities tion labor of the of the force past discrimination. It also unlawful in the It parishes study. and involved stat- adjudi- did not stated that it constitute ed, alia, municipalities inter that the and cation on the merits and that defend- parishes involved a population had total any discrimina- ants denied that unlawful approximately was black and 27% had tion occurred. female; that, approximately po- in the 52% ordering After briefing Justice involved, departments lice approximately Department, the district court filed a Mem employees 8% of the were and black 12% female; that, 1977. Opinion July were orandum It stat depart- and in the fire involved, approximately ments ed that the court was not assured that 2% the black, employees unlawful, were and female.1 not 1% terms of the decree were The letter further stated the Justice unreasonable, or re inequitable, that it Department was convinced of the existence quired the to discriminate defendants pattern of a practice discriminatory against qualified despite whites and males employment practices in the fire and admission, any proof, judi the absence of or departments involved in the and in- study, past finding discriminatory cial conduct. vited settlement discussions. court, stating following that it was principles enunciated United States 29,1977, complaint

On June was filed in Jackson, F.2d United States District Court for the 1975) Allegheny-Lud Eastern District of Louisiana States v. the United Industries, States of America against consisting class lum F.2d 826 municipalities denied, numerous Louisiana and cert. U.S. 96 S.Ct. officials, several of their alleging sign L.Ed.2d 187 refused the con traditionally pursued defendants “have and sent decree.4 pursue practices policies continued face highly We thus this case

which discriminate and fe- blacks posture: unusual since both the deprive males and which or deprive tend to re employment opportunities agreed them of defendants have ad- versely employees parties affect their status as be- lief and have entered the no other sex,” action, arguments cause of race or sup- violation Title no raises one statistics, principles pro- 1. Besides these overall letter A con- succinct statement of the is specific figures relating by City tained workforc- vided Jackson: departments es of of individual Although approve court must consent parishes. municipalities defendant doing inquire in so does not into precise legal rights respective parties, concerning Issues individual relief and some only but assures itself that there has been promotional practices remained, of defendants valid consent concerned by litigation. which were to be resolved unlawful, that the terms of the are not decree unreasonable, (citations inequitable. omitted) 3. The full text of is set the consent decree out Appendix opinion. Id., as an to this 519 F.2d at 1151. types approved, is and the of issues sign ment refusal court’s port of the district level, general At involved. the trial decree.5 do “inequitable” and “unreasonable” terms Approval II. Standards into account the vari- adequately take Decrees Consent factors other than terms ous must enter the trial decree itself which Miami, su City of we discuss in As court’s deliberations. pra, 1334-1335, pp. 1330-1331 & of the standards typical formulation be said fear of contradic- It can without settling litigation decrees approving consent that, practice, have district courts court as follows: trial can be stated settlements, generally approved proposed satisfy itself that the consent decree must appellate only rarely courts have unlawful, unreasonable, inequitable approving decisions settlements. versed the appellate be approved;6 before it can Here, with the of the we faced converse it that only reverse if finds court will court below refused to usual situation. The trial has abused its discretion. court presented for the consent decree approve supra, only one of approval. we We have found explain his As we has appeals applied court of can little content “abuse find standard, to review of a believe that abuse of discretion standard discretion” depend approve a settlement. degree appellate scrutiny must trial court’s refusal House Pancakes See In re International factors, as the familiar- variety on a such Litigation, lawsuit, 303, (8th Franchise 487 F.2d 304 trial with the ity of the court 1973).7 by Eighth at which the settle- Cir. This extension stage proceeding suits, Brands, Inc., actions or 606 F.2d class resolving shareholder derivative 5. In v. American Carson 1979) banc), (4th (en question appealability the Fourth Cir of orders 420 Cir. denying approval that a district court’s refusal to enter cuit held a consent decree the class settlements in by litigants agreed to in a context. We are not here faced with the action private parties is VII class action between Title not relating special actions ad concerns class precedent appealable. Fifth com Circuit cases, by dressed those need not decide pels Myers Cir.), opposite result here. us to reach the we whether would follow Carson if faced (5th Corp., Paper 544 F.2d 837 v. Gilman approve proposed district court’s refusal to a 741, Inter sub nom. Local cert. dismissed action class settlement. v. of Electrical Workers national Brotherhood 28, 801, Myers, (1977), 59 434 U.S. 54 L.Ed.2d 98 S.Ct. is the in United 6. This formulation stated approving a set we held that an order Jackson, 1147, 1151 States v. 519 F.2d containing injunctive provisions relat tlement 1975). (5th positively, been Cir. More it has “ ‘grant ing ing,’ injunction,” was to recruitment and one that the must find the settle- said trial court ‘continuing,’ ‘refusing an dissolve’ fair, adequate, See Cot- ment and reasonable. appealable un and was therefore Hinton, 1326, (5th Cir. ton v. 559 F.2d 1330 847, 1292(a)(1), relying on id. at § der 28 U.S.C. our earlier decisions of Freight 1977). precise adopt We do standard Sagers v. Yellow special we consider because considerations City 721, System, Inc., (5th Cir. 529 F.2d 730 Miami, supra, pp. at here. relevant See Inc., D.C., 1976), States v. T.I.M.E. — 1331-1334. 299, 1975), vacated n.11 Cir. grounds In nom. and remanded other sub Pancakes, dis- House of 7. In International v. United ternational Brotherhood of Teamsters States, approve 324, 1843, a settlement trict court refused L.Ed.2d 431 U.S. S.Ct. opposed by (1977). granting approval members which was Since an order injunc “granting” ground perpetuate of consent an decree is one on the that would class the 1292(a)(1), lawsuit, purposes very illegalities challenged by order re tion for an § fusing approval of a consent decree is necessar by appeals. As the court of and was affirmed ily “refusing” purposes injunction one an determine, appeals we can no court of far as 1292(a), appealable. and is therefore § upheld court’s refusal has ever a district Fourth relied We also note that the Circuit than when no one other enter a consent decree heavily Coopers Lybrand cases v. such & objec- judge has the trial himself raised Livesay, 437 U.S. S.Ct. 57 L.Ed.2d Brands, But v. tions to it. cf. Carson American (1978), Westinghouse v. Broad Gardner Inc., 1979) (order re- 606 F.2d 420 Co., casting appeala- fusing enter decree is not consent Merrick, Seigal L.Ed.2d 364 ble). (2d F.2d 35 all of which relate reasons, disapprovals of settlements For will Circuit to was these we under fashion, summary done in and without anal- take a de novo review of the consent decree ysis. We follow its lead.8 The proposed by parties.10 decline to which was This voluntary public policy governed by principles favor settle- review must be ments,9 govern which is fostered a deferential which today have decided review, appellate is standard of defeated consideration of consent decrees this con a standard which would allow trial courts to proposed text: that consent decree reasonableness, impose their views of sub- private government agency defendant and ject only deferential “abuse of highly car discrimination case review, on discretion” settlements reached a presumption validity ries with it government agencies responsible only provi overcome if decree contains unreasonable, Title rights. enforcement of VII illegal, sions which are uncon stitutional, public policy. See procedural case, In the context City Miami, supra, pp. 1333-1334. desirability of appel- careful review at the late level is manifest. The trial court had Application III. of the Standard heard no evidence at the time the consent Our review of the consent de- presented approval. decree was for his cree reveals no provisions could There is thus no reason to defer to the trial unreasonable, illegal, called unconstitution- greater court’s exposure familiarity to and against public contrary, al or To policy. the with the litigants, strategies, positions their goals the established the decree coincide proofs, the typical unlike situation in exactly with those of Title VII —to ensure negotiations which settlement come to frui- equality employment opportunities pretrial represent- tion later in the process, groups who have been excluded full Co., Heating Plumbing ed Ace & Inc. v. participation in the labor market. pro- Crane, 30, (3d 1971). 453 F.2d 34 Cir. posed long goals decree established term do carry We not the mistaken notion that achieving job all in classifications the same heightened review of district court refusals percentages of blacks and women as are to enter consent decrees will resolve the present the workforces in the various problems almost intractable in this area. interim, affected In goals localities. But we do not believe that individual feder- ranging from to 15% 50% blacks women judges al should have unchallengea- almost filling were set for the of vacancies within ble power to slow or the progress halt departments. say We cannot that these well-intentioned efforts to eradicate the ef- goals oppressive males, are to whites or of past fects prevent discrimination and against public policy; are nor anything does future discrimination. The extent and ve- appear which would make us believe that locity of among affirmative is action illegal they are or unconstitutional. problems most difficult facing judiciary Legality, Constitutionality, A. today. Supreme Even the Court has been Policy. Public unable or to unwilling lay any guide- down concerning lines speed with which vol- one appeared, Since no has either before untary may proceed. affirmative action the trial appeal, urge court or on to that the District courts should not have unchallenge- provisions of illegal, the consent decree are able power pace. unconstitutional, unilateral to slow its or against public policy, suggestion Judge Thornberry’s 8. Despite presumption validity We note a 10. opinion City Jackson, supra, that consent we hold attaches consent decrees in this fully satisfy context, City 1333, decrees which all will not see 614 F.2d at Id., duty come before us for consideration. 519 F.2d the courts cannot shirk their consider presume at carefully. Especially 1150. This statement seems decrees since approval sign almost automatic of settlements the trial court refused to parties agree. which all analysis required by must undertake principles today. laid down City Miami, supra, 9. See 614 F.2d

1363 specific ‘ap occasions argument no been condoned such we cannot sure powers.” However, propriate’ equitable exercises of provisions the only be made. can 638, supra, Local 532 F.2d at Our own possibly which seem consent decree upset have often refused to relief decisions impose are those which subject to attack timetables, involving goals including goals. It these promotional some in context of consent decrees be appear have been the provisions which tween United employers States. when judge’s of the trial concern he focus Jackson, See v. United States sign judge decree. The trial refused United States v. 1975); (5th F.2d Cir. Weber Kaiser opinion his relied on own Industries, Inc., Allegheny-Ludlum Corp., Aluminum and Chemical F.Supp. denied, cert. 1975), Cir. 425 U.S. aff’d, (E.D.La.1976), 563 F.2d 216 944, 1684, 187 (1976).11 48 L.Ed.2d S.Ct. rev’d, 193, 1977), Cir. S.Ct. (1979), 2721, as well as 61 L.Ed.2d City of Miami we undertake Kirk opinions Second Circuit analysis detailed of the status racial and Department land v. New York State goals sexual to meet affirmative action ob Services, (2d Correctional 520 F.2d 420 jectives. pp. See 1335-1338 of denied, cert. 1975), U.S. Miami. We need repeat that analysis Equal Em 50 L.Ed.2d 582 here; applies incorpo it verbatim and we Opportunity v. Local ployment Commission rate reference. It suffices state our (2d finding 532 F.2d 821 least in the context conclusion: at of suits unacceptable. His re percentage brought by government against the federal misplaced. Weber since liance is has been municipalities alleging violations of Title Court. Kirkland Supreme VII, targets acceptable reversed are under which, course, and Local are the Constitution and laws of except binding they on this court extent so long reasonably States relat reasoning persuasive, recog legitimate goal achieving we find their ed to the state “minority membership goals equality opportunity.12 nize that have nation respective percentages in the partments. vened racial, ing conclusions: ularly strenuous denied, Commission Telegraph 1161 ting unequal bers Negro policemen Barriers positions in the officer ranks police and area of Negroes failure to recruit unequal promotional opportunities, natory job nority persons fellow workers. police Also, We note focused on fire in the by sexual and ethnic supra, 438 in state public Co., challenge departments E.E.O.C. American here U.S. A 1969 fire the Third Circuit assignments, equal suit, at 556 F.2d 167 treatment and local Civil that the concern over discrimi- departments 915, p. sector from municipal police employed departments a consent decree and firemen hold Minority 1338 study effectively fire Rights v. 98 S.Ct. joining unions employers, have n. departments government targets equal to by 29, (3d reached local group the United States than 3145, upheld, over discouraged has been significant Cir. who their ranks also harassment are job including Telephone labor and fire de- see hostility 1977), the follow- by permit- 57 had deters greater almost requiring discrimi- . Police L.Ed.2d partic- forces. inter- other num- cert. mi- no & 2137, partment); Firefighters been to Title Association v. Cir. Louis, Mo., 566 F.2d 1334 ment crimination. people 43 872 denied, (7th ^[1972] ment); U. S. (1969). 59 NAACP, manded 1974) The House Numerous cruitment, L.Ed.2d minority community. problem L.Ed.2d (1979); Cir. 1979); because found Commission departments. 2153 (Alabama Highway cert. NAACP U.S.Code 443 U.S. as . . . Inc. v. VII, H.Rep.No. 1979) (East Chicago, Indiana Fire De noted moot, denied, 588 to have Dawson v. 775 and this has not been overcome Davis v. of discrimination in law enforce- See, Report of the 642 Young, (9th Beecher, v. F.2d 904, (1975) (Boston By specifically 440 Cong. e. Allen, on 421 U.S. (1979); and fire Cir. visibility g., engaged on the 1972 amendments 235 99 S.Ct. all the Civil 608 F.2d County U.S. Detroit Institute Pastrick, 504 F.2d 1017 1977) 493 F.2d 614 92-238, & (8th Patrol); Rights, 625, 910, departments Admin.News, Boston people,” of this the acuteness of 3096, in unlawful dis Cir. vacated and 671 at Police 99 S.Ct. 95 v. Los Fire 600 F.2d 70 reprinted “For 1978), Morrow v. S.Ct. 61 L.Ed.2d activity Angeles, Chapter, Officers’ 686 (1st 119-120 Depart all the of St. 1561, 1379, have cert. (6th Cir. pp. re by 1364 Teamsters,

Therefore, immediately supra, turn ees are hired.” S.Ct. at question of the reasonableness con- 1856 n. 20. issue '

sent decree at here. prima Once facie has been case established, employer may introduce ev B. Reasonableness. attempt idence to to rebut the inference the consent decree was submitted Since See, figures. g., raised e. Hazel approval complaint at the time the same wood, supra; Dothard, supra; Griggs v. filed, appropri- was the reasonableness and Co., 424, 432, Duke Power U.S. S.Ct. of the consent decree must be ateness meas- 854, 849, (1971). If 28 L.Ed.2d 158 allegations ured com- employer is unable to rebut the prima facie plaint might and the relief which have been case, merely the district court has “not gone granted if case had to trial. See power but duty to render decree Cotton, supra, 559 F.2d 1330. For this far possible which will so eliminate the briefly purpose, prin- we must review some past effects discriminatory well as VII ciples litigation. Title bar like discrimination the future.” Al 405, Paper Moody, bemarle Co. v. 422 U.S. prima To make out a facie case of 2362, 2372, 95 S.Ct. 45 L.Ed.2d 280. pattern practice of discrimination in vio We have never of any heard doctrine of VII, private lation of Title all that a put law which requires a defendant on a government plaintiff need initially show is prima defense to rebut a facie case. significant that there dispari is statistical Hazelwood, supra, example, the defend- racial, ty between the sexual or ethnic bal virtually ant offered no evidence in re- composition ance and an employer’s work sponse government’s case. S.Ct. community force and that of the Teamsters, supra, at 2739. In the defend- See, which the g., workers are hired. e. mainly case general ant’s consisted state- States, Hazelwood District v. School only qualified ments that it hired the best 299, 306, 2736, 2741, 433 U.S. 97 S.Ct. applicants. 97 S.Ct. at 1858 n. 24. The Rawlinson, (1977); L.Ed.2d 768 Dothard v. may simply plain- defendant claim that the U.S. S.Ct. L.Ed.2d 786 insufficient, case tiff’s is and choose to (1977); International Brotherhood of Team present no evidence. If had occurred in States, 324, 97 sters v. United case, present- the instant or if the evidence 1843, 52 (1977); L.Ed.2d Pettway ed the defendants had been insufficient Co., American Pipe Cast Iron government’s to rebut prima facie 1974). n. 34 This true be case,13the trial court would have been obli- cause, explanation, ordinarily “absent it is gated to enter a decree the defend- expected to be nondiscriminatory hir ants. ing practices will in time in a result work representative force more or less Although proposed consent decree racial and composition ethnic of the popula any contains disclaimer of admission of tion in community from employ discrimination, which we do not understand the Crisler, (5th Cir.) banc), F.Supp. (en (N.D.Cal.1973), appeal 491 F.2d 1053 cert. 77 dismissed as denied, 895, 173, moot, (9th Cir.), denied, 419 U.S. 42 95 S.Ct. L.Ed.2d 542 F.2d cert. (1974) (Mississippi Highway Patrol); 1014, 446, (1975) Vul U.S. 96 S.Ct. 46 L.Ed.2d 385 Society Dept., (San can of N.Y. Fire Inc. v. Department). Civil Francisco Fire Commission, (2d Service 490 F.2d 387 Cir. inability 1973); Guardians, 13. We note that a Bridgeport defendant’s to rebut Bridgeport v. Inc. prima employment Commission, facie case of (2d discrimina- Civil Service 482 F.2d 1333 necessarily 1973) tion does not mean (Bridgeport, defend- Cir. Connecticut Police De

partment); ant has Gallagher, discriminated. Once the burden of Carter v. 452 F.2d 315 practice validating 1971) (8th (en banc) has to shifted the em- (Minneapolis Fire De ployer, may partment); it lose it Pennsylvania its case because is unable Commonwealth of v. persuasion, merely Flaherty, to meet its burden of F.Supp. (W.D.Pa.1975) attorneys thorough because its (Pittsburgh have done a Department); less Police Western Addi job possible. than was Community Alioto, Organization v. very appropri- to It is difficult review seriously dispute to the facts defendants in vacuo. Our normal composition of a concerning statistical ateness decree made respond arguments by the communities is to to role their workforces However, it is litigation. to the contained in the they which are drawn major provisions of in the clear here that complaint and letters government’s are those attorneys decree which are controversial by various government written for the which Applying officials. establish and local state Teamsters, supra, in the and females fire teachings these statis- blacks municipalities, department of the defendant inference discrimina- tics would raise an justifi- so we will focus our attention these the burden tion sufficient to shift goals. As we have cation to the defendants.14 obligation

noted, have no the defendants sex-consciousness, Without race discrimination contest inference sexual past discrimina effects racial statistics, they by do raised these Many tion cannot be eradicated. cases have it contest here.15 appropria to be held racial and sexual of Jack consent decree in Looking provisions consent te.17 at the son, supra, put set hiring goals had on a case at 50% black decree if the Id., female. consisting solely of the uncontroverted sta- 33V3% 519 F.2d at 1150 n. 4. Crisler, v. and other docu- Morrow complaint Cir.) F.2d 1053 tistics denied, cert. it, (en banc), ments before and the defendants had any rebuttal evi- putting rested without L.Ed.2d 139 authorized dence, nothing inappropriate temporary we find about one-to-one black/white Gallagher, ratios. Carter 452 F.2d 315 the consent decree.16 15, 1976, interpret any We 14. The November from J. the disclaimer of discrimi- letter dated be, Stanley Attorney Pottinger proposed Assistant then an nation in the decree to consent Rights effect, right Division of the De- General partment the Civil contest reservation of the Justice, Attorney allegation the then illegal Gen- discrimination suit Guste, Louisiana, Jr., relief, eral of was the J. government William for additional either along court submitted to the district private plaintiff. Such a disclaimer is contains numer- consent many standard consent decrees in this con- magnitude telling ous statistics. The text, see, g., e. E.E.O.C. v. Contour Chair disparity racial overall composition between the and sexual Co., Lounge 596 F.2d 809 and is force in the of the Labor defendant upon many insisted defendants for the obvi- municipalities that of their they unnecessarily ous reason that do not wish department amply workforces is indicated open up large backpay themselves following excerpt: pro- In the awards. viding context of consent decrees data, According relief, interpret to 1970 mu- Census the 39 we action affirmative nicipalities parish protection and 9 fire dis- there disclaimer to admission that is a be an investigation tricts in our have an involved disparity which the defendants can- statistical approximate 1,411,569 population of total unequivocally together explain, with a res- persons of which is black and attempt explain right 51.8% ervation 27.3% female, comprising with females any other 37% time. the labor force. approxi- As there were of June We do not the trial court to understand have mately 2,903 employees police department rather, opin contrary; read his held ap- municipalities, the proximately of whom covered percentage to have numerical or ion goals held that black were and 11.6% 8.2% quotas illegal per or are se absent a 1,741 approximately were Protec- female. Of judicial finding past discrimination. This police employees, tive black were Service 8.5% position Supreme the made untenable female. were 2.6% University Regents decision in Court’s 1974, 30, approxi- As were of June there Bakke, 265, California S.Ct. mately 2,243 employees department fire 2733, (1978). 57 L.Ed.2d 750 See discussion in parish municipal the 45 fire de- covered Miami, pp. supra, at 1336-1338. partments, approximately of whom 2.1% ap- were proximately, female. Of black and were 1.1% 17. See cases cited in 614 F.2d at 1,114 Fire Service Protective employees, were fe- black were 0% 3% male. 1971) (en denied, banc), them, required nearly cert. and had crossed 950, U.S. S.Ct. L.Ed.2d 338 tightrope. successfully the had They nego- (1972), authorized a one-to-two ratio. would, time, plan tiated a over undo past hiring effects decisions that had These and similar cases establish the overwhelmingly resulted in white male guidelines for percentage goals. ratios and forces, yet With work unnecessarily statistical imbalances as severe as would not here, present those we do not feel that the trammel the interests of white male em- percentages used in the consent ployees. Department The Justice was satis- none which exceeds or 50% blacks fe fied plan was fair and realistic. males, inappropriate. are Significantly, the All that was needed was trial court’s goals are all temporary, and will terminate approval. when manifest imbalances have been however, The trial zealously guard- court Moreover, eliminated.18 do not ing the tower at the end of the tightrope, establish an absolute bar to the advance was not It satisfied. would not let the Weber, supra, ment white males. See off, said, they joined defendants he before Additionally, S.Ct. at 2720. only qualified plaintiffs performing an intri- blacks and women need be considered cate tightrope dance in- dance Thus, for defendants vacancies. —a volving complicated detailed statistics and preference operates prefer only a black proof fifty-four separate for defendants. or a woman male to white when both guard We do not believe tower must applicants qualified job. for the Tradi protect Rather, tionally, territory preferred zealously. white males have been so it past. this situation in the The must helping will lend hand to those who have serve prevent thus responsible those already come this far —the court must look personnel decisions from automatically at proposed plan sympathetic with a choosing a white male qual when there ais eye, and extend what aid it can. ified black or attempt female. This performance For a successful on a break down traditional patterns which fore tightrope, rope sufficiently must be taut opportunities close to blacks and women acrobat, to support yet must have was the motivation behind Title VII. See enough play to afford him some control. Weber, supra, 99 S.Ct. at 2730. plan An affirmative action similar has con- IV. Conclusion straints. acceptable The extent plan Like the defendants United Steel cannot be measured with mathematical ex- Weber, workers of America v. 443 U.S. plan actitude. must strangle em- ¡The L.Ed.2d 480 ployees sex, race but with too here “high defendants were on a leeway much play, employment deci- tightrope without a net beneath them.” .sions based on prejudices racial sexual Weber, supra, 99 S.Ct. 2731 (opinion large. becomes too Goals targets, set Blackmun) Weber, Justice quoting levels, at reasonable can degree afford this 1977) opinion (dissenting flexibility. Judge Wisdom). Like defendants Department is charged Justice there, the liability defendants here face with attempting remedy “pattern past blacks, yet discrimination can practices” of discrimination attempt rectify past wrongs without governments. case, local In fearing found liability whites. the face of clear strong judicial evidence of discrimination in crosswinds from decisions the sta- actions, about composition affirmative defendants here tistical of defendants’ work- had performed forces, difficult acrobatic task evidence that defendants did not decision, Young, Sixth In recent Circuit has Police Officers’ Association v. goal 1979). the same racial said that “a which seeks at 696 Absent unusual among employees proportion as in the labor hardship circumstances or undue non-minor- ordinarily workers, ity agree proposition. force will be reasonable.” Detroit with this settling being spirit parties, The desirous with the compliance contest. necessary agree effec- voluntary appropriate conciliation action employment, in over end discrimination tively jurisdiction Court Department and the Justice subject matter of this spective parties defendants and many similar to a consent decree negotiated entry find- action, waive hereby and before, presented it and approved of law. The of fact and conclusions ings approval. court for Because district aver that this action further against decree “discriminates” action under as class properly maintained males, court refused to the district white of Civil Proce- 23 of the Federal Rules Rule it. approve dure, and that the named defendants representatives of that class. This proper revealed that the decree analysis has Our binding and as the issues Decree final approved. The remedial should have been Decree, being herein. This entered resolved in decree are a provisions contained defendants, shall consent op- equality to ensure reasonable effort adjudication or finding not constitute an and females without portunity blacks case the merits of the and defendants sacrificing the interests white unduly them, deny any each of unlawful giv- Justice Department The has males. discrimination has occurred. Defendants Accord- approval en settlement. its specifically court’s assert that this Decree shall not the district refusal ingly, we reverse decree, and any remand constitute admission of violation of to enter the consent to enter decree the district court law. proceedings consistent with this

for further ORDERED, AD- IT IS THEREFORE opinion. DECREED AS FOLLOWS: JUDGED AND REVERSED and REMANDED. defendants, officials, The their successors, all

agents, employees participation persons in active concert or APPENDIX performance in with them the covered the com- fire service functions PARTIAL DECREE CONSENT permanently plaint filed in this action are of America United States any prac- act or enjoined engaging complaint against, this action filed or effect of which has the tice Louisiana, inter alia the State State against unlawfully discriminating any black Examiner, Municipal Fire and Police Civil of, any or employee or female or black Service, Rouge, Baton the Cities of for, potential applicant applicant or female Monroe, Ken- Shreveport, Alexandria and respective depart- with their (hereinafter Employers), ner referred to as of such individu- ments or districts because representatives as class defendant race, color, Specifically or al’s sex. protection districts for whom cities unlawfully discrimi- defendants shall personnel employment examina- hiring, against such individual any nate tions are administered Police State upgrading, training, promotion, assignment, The Complaint and Fire Civil Service. race, discharge because of col- discipline alleges engaged that the defendants are Further, or, defendants shall or sex. pattern practice discrimination respect adversely any or in retaliate sex, employment on the basis of race and person has person because affect Rights violation Title VII of the Civil discriminatory policies or opposed lawfully seq., Act of 42 U.S.C. 2000e et person’s partici- of that practices or because amended, the Omnibus Crime Control and initiation, cooperation with pation or Act of Safe Streets U.S.C. litigation any charge of amended, investigation or and the State and Local Fiscal sex, or the race based Assistance Act of discrimination U.S.C. 1221 et this Decree. seq., as amended. administration positions within (c) For non-uniformed interim departments, respective It is and intent this to fill at least shall be goal for blacks Decree insure that blacks and women are (50%)of vacancies with percent against by fifty not unlawfully discriminated purposes For applicants. promotion, assignment qualified black hiring, and other compliance with this sub- determining employment policies practices in non-uni- respect defendants with defendant all vacancies paragraph, togeth- fire Employers’ departments, grouped shall be positions formed any disadvantage that and women blacks er, respect jurisdic- those expect with past which have resulted from unlaw- heretofore there have been tions which equal ful discrimination is so remedied that jani- positions, such as traditionally black employment opportunity provided will be laborer, tradi- in which case such tor (without all. The agreed defendants have will not be tionally positions black admitting legally such standard is pur- positions the other grouped with required) in determining whether such determining compliance. poses achieved, purpose and intent has been (d) positions within For non-uniformed comparison use propor- as a standard of respective departments, the interim appropriate tion of blacks and women in the be to fill at least goal for women shall respective work force of their cities and fire (50%)of percent the vacancies with fifty districts, protection agree to undertake applicants. pur- For qualified female decree, long goal subject as the term of this determining poses compliance with this availability qualified applicants, in non-uni- subparagraph, all vacancies achieving proportions those of blacks and positions grouped togeth- be formed shall women the uniformed and non-uni- er, respect jurisdic- except to those with job formed classifications within their re- tions in which heretofore there have been spective police departments positions traditionally female such sec- appropriate blacks women bear to the matron, retary, clerk or typist, record jurisdiction. work force particular in the traditionally posi- female case such purposes For of this Decree uniformed re- grouped tions will be the other fers to sworn officers and all fire positions purposes of determining personnel performing fire fighting, preven- compliance. tion inspection meeting duties. this long goal term the defendants adopt shall For purposes determining compliance below, goals interim set out measured with the goals interim established para- filling an annual basis vacancies with- graph decree, 2 of persons “blanketed departments: those pursuant in” to Louisiana state law shall be (a) For entry positions uniformed persons considered filling subject vacancies of police officer and firefighter, the inter- further, goals; the interim for purposes im shall be to fill at fifty least persons who complete fail to percent (50%)of all quali- vacancies with probation shall not be counted as having fied applicants black departmen- until the appointed. been parties recognize that, tal goal of the percentage work force in evaluating an Employer’s compliance met. with the interim long term (b) For entry position uniformed of women herein, established the level of in- police officer, the goal interim shall be to terest demonstrated women in the work fill twenty-five at least percent (25%)of force, after good faith recruitment efforts the vacancies with qualified appli- female pursuant to paragraph hereof, shall be cants, and for the entry posi- uniformed considered. firefighter, goal the interim shall

be to fill (15%) Applicants at least fifteen identified as victims of un- qualified vacancies with appli- female lawful discrimination under paragraph departmental cants until the goal 15(b) of this Decree shall given initial work force percentage preference is met. in filling entry level vacancies

(f) If believes that interim plaintiff of being not met because hiring Upon employment of this Decree. under herein, practices permitted or standards en- filing of vacancies persons, such objects to a standard or its otherwise or pursuant to the proceed shall try positions parties shall the affected implementation, 2 above. paragraph provisions a attempt agree to on modifica- meet and for blacks and interim 4. The thereof, appropriate or other action. con- paragraph 2 shall set forth in women party may Failing agreement, either or dis- department each in effect for tinue for move a determination the Court goals for that long term until trict validity or standard the lawfulness achieved department or have been district practice. or year. one period for a and maintained Any age permit- 6. limitation maximum filling vacancies the uniformed 5 above paragraph to shall be pursuant ted (firefighter police offi- positions and entry any applicant who for black deemed waived titles), equivalent cer or defendants qualified was because of time when he at a to considered applicants, be require any written examination for age, failed the qualified, meet the minimum standards set which was in effect on or eligibility list respective local by state law or forth 1972; for any fe- subsequent to March police civil service boards fire and when who a time she was applicant male 1, 1977, such other valid stan- January was age eliminated qualified because may sub- as the state or local boards dards height and minimum consideration adopt, except that: sequently subsequent to March weight requirements (a) In the that a board event local in- appli- or female black 1972 and qualification modify any tends to or stan- qualified because who was at the time cant promotion subsequent dard for the written exami- passed who age, and 1, 1977, shall, January forty- to the board in existence on or eligibility list nation for (45) days five prior implementation 24,1972, appointed was not but after March modification, of such notify plaintiff in (90) ninety days of Within from that list. writing of the content such intended Decree, defendants, together entry modification. shall review records plaintiff, with the (b) Any age permitted limitation above local boards to determine of the state and subject provisions shall be para- and the de- persons, of such identity (6) graph below. regis- notify persons by such fendants shall (c) require- formal Minimum education right re-apply regard- their tered mail of permitted ments above shall be deemed appropriate exami- for the next age less equiva- include acceptance the GED nation, again given notice will such lent. next examina- prior to the thirty (30) days registered mail the indi- height

(d) weight All minimum Notice tion. complies known address last pro- This vidual at his quirements shall be abolished. paragraph. with this prohibit shall vision administra- job-related physical a test of tion of in eval- provided, Except as otherwise if strength agility, provided an shall utilize Employers uating applicants, test, to utilize a Employer wishes such procedures in manner standards their forty- in writing, provide plaintiff shall effect non-discriminatory use, (45) days specific prior five achieving the interim and consistent description of test content. Each 2 above. paragraph goals set forth background investi- within provide (e) Employer Utilization shall appli- entry of Decree days (45) factors related forty-five gations other employ- suitability for em- factors disqualifying a list all character cants’ employ- or fire accord- uniformed ment be conducted shall ployment which are not ee, of those factors and a list paragraph provisions with the ance disqualifying, but which are automatically below. impact do have adverse valid or blacks or women. If defendants wish applicant’s evaluating considered validity requirements of such to assert the suitability employment. character failure to meet the interim as defense for these factors and if Plaintiff shall review hereof, paragraph forth goals set validity of disagree on the these parties the parties they notify plaintiff. so If shall the considerations, party move either agree validity are unable to on the Approval acquies- for resolution. Court requirements, party may either move the use of in the factors cence of for a determination of their Court lawful- automatically disqualifying not which are ness. approval to not be deemed be shall bemay in which the factor utilized manner 11. There shall be no discrimination on particular respect, to individual. the basis of respect race sex with to duty may, 8. The Examiner for the en- State assignments police within the and fire de- firefighter try positions police level partments, except may lawfully be officer, applicants administer written by quired special nature of assign- provided by present examination as ment. for the Louisiana Statute estab- (a) defendants, and each of lishing qualified applicants lists of for certi- them, agree develop implement an protec- fication to defendant cities and fire active and continuing program of recruit- districts, Provided that such examina- ment directed at increasing substantially tion shall not be a defense for failure to the number of black and applicants female hiring goals meet interim set forth police positions and fire to a level con- hereof, paragraph parties unless mu- sistent with obligation their to achieve the tually agree that the examination and hiring goals interim established para- passing score utilized not ad- do have an graph 2 above. discriminatory impact validly verse (b) Before establishing eligibility list qualifications. posi- measure the for those positions for the entry police and fire required by tions and are necessity. business departments Decree, covered each If validity defendants wish assert the local board report shall determine and the written examination as a defense for whether, State Examiner based esti- goals failure meet the interim hiring set mated hiring during the life of that list and hereof, forth in paragraph they pro- shall the race and up list, sex make of that plaintiff any vide relevant validity stu- department bewill able to meet its interim underlying dies and data. If parties are hiring goals from that list. compli- Should agree validity unable to on the of the exam- ance be reasonably not expected given the ination, party either may move the Court up list, make of that the Local Board shall for a determination of its lawfulness. certify for employment from that list 9. Where appropriate, defendants shall and the appointing authority and the State classes, fireman, retitle such to eliminate Examiner immediately notify shall suggestion preference. of sex No addi- plaintiff in writing matter, specify- appointments tional shall be made from ex- ing details, all relevant including copy isting eligibility for positions lists covered list, sex, identified race and and the Decree, by this unless continued use of the anticipated number of appointments over list will allow compliance with the interim the life that list. parties The affected goals established in this Decree. shall then meet period within reasonable 10. Current experience education and to discuss methods depart- which the requirements established for non-uniformed ment can meet its from that list or positions may continued, provided that any subsequent list. parties If the fail to requirements such shall be a defense for resolve the matter voluntarily thirty within failure meet the interim established (30) days original plain- notification to in paragraph 2(c) (d) unless tiff, party either may move the .Court mutually agree requirements that such immediate resolution. police fire and civil ser-

(b) Each local plaintiff for Examiner, provide vice board shall local of State 13. The Office department covered and, boards, and fire police each police service fire and civil this Decree: under police and fire local applicable, the where all records for shall retain departments, persons, by race 1. The number to the re- (5) years relating of five period sex, position on appointed to each cruitment, selection, promo- appointment, dur- departments these and fire discipline of tion, assignment and training, reporting period. ing departments cov- persons persons, by race The number Decree, including applications, ered sex, during report- disqualified sex, all medical by race and identified posi- appointment to a ing period files, training investigation background departments, categorized tion these applicants evaluations, all of evaluations by disqualifi- reasons for position, and and certification employees, eligibility and cation. by identified race persons lists with address, name, telephone The 3. sex, discipline and relating to and records number, person sex of each race and right have the to discharge. Plaintiff shall resigned from these or who terminated or all such documents inspect copy any reporting peri- during the departments with- to defendants upon reasonable notice od, probation. of prior completion Court, except that this out further order of address, name, telephone 4. The or the individual authorization from proper number, sex of each black or race and required with of the Court order employee discharged during the female addition, de- records. respect medical period, and a statement of reporting or furnish such information fendants shall discharge. the reasons writing, pro- requests as plaintiff records persons The total number of 5. unduly not be requests shall vided such job depart- each classification these provided further burdensome ments, sex, by race and as of close reasonable costs plaintiff pay shall period. reporting of the thereof. 6. An of the number estimate Decree, a re- purposes For of this 14. anticipated appointments by de- 1 July from period run porting shall partment job dur- in each classification January through December 31 and ing reporting period. the next year. each Within through June summary 7. A of all efforts made of each (30) days after the close thirty during report- departments by reporting period: with the re- ing period connection (a) of Fire and Police The Office State women, pursu- cruitment of blacks and plaintiff: provide shall Civil Service 12(a) of the Decree. paragraph ant to by department covered 1. For each police civil (c) Each local fire and ser- Decree, by persons, number of this provide plaintiff, shall also vice board sex, position each tested for race and forty-five (45)days entry within number, by and the' department, Decree, showing report number sex, passed who the examina- race and sex, job in each race and persons, during reporting period. and fire de- each classification es- eligibility list Copies 2. of each Decree, by this as partment covered during position for a tablished January persons identified period, with porting (a) by race sex. reserve for resolu- Complaint tion all issues raised by the summary 3. A efforts made standards, respect policies practices period in reporting during State personnel, promotion related to the of blacks with recruitment connection plaintiff to all asserted claims women, paragraph pursuant persons alleged by behalf 12(a), this Decree. proposed any ground, consent decree on disadvantaged have been by virtue of un- constitutional or otherwise. In the absence lawfully discriminatory policies practices challenge, constitutional I believe that of defendants. sus propriety decree is Decree,

(b) Upon entry plaintiffs principle Supreme tained in Court’s access, shall be given all reasonable decision in Weber Kaiser Aluminum & purposes inspection copying, in ac- (E.D.La. Corp., F.Supp. Chemical cordance provisions paragraph with the 1976), aff'd, F.2d relating payment, to medical records and rev’d sub nom. v. Web United Steelworkers personnel records of the defendants er, 61 L.Ed.2d relating employment, in- (1979). I concur therefore in the result cluding promotion, both hire and for the only. identifying blacks and women who may have been victims of unlawful

race sex discrimination. Such review

shall be completed possible, soon but event within one year entry

this Decree. Nothing in this prej- Consent Decree rights to,

udices the any of defendants time appropriate, urge that adverse impact ALLEY, Plaintiff-Appellant Robert L. alone, unaccompanied by discriminatory in- Cross-Appellee, tent, does not constitute a violation of the law to urge Congress that the is without

power to dispense legislatively with the re- MIRAMON, Jr., al., Louis et Defendants- quirement discriminatory intent be es- Appellees Cross-Appellants. tablished. ' No. 77-2476. 17. For those named defendants class sign stipulate members who Appeals, States Court of Decree, terms operation of Sec- Fifth Circuit. n tion 518(c)(2)(E) of the Omnibus Crime Con- April trol and Safe Streets Act of as amend- ed, stayed. shall be jurisdiction

18. The Court shall retain

this action for may such further relief as

necessary appropriate to effectuate the

purposes of this any Decree. At time after

five years from the date this Decree

defendants or of them apply with

sixty (60) days to plaintiff, notice for termi-

nation of this respect Decree with to that

party, upon a showing that defend-

ant of achievement of this

Decree, granted by such motion shall be

Court, good absent cause plain- shown

tiff.

GEE, Circuit Judge, specially concurring: By contrast to United States v. al., et companion case handed down to

day, no party to this appeal resists the

Case Details

Case Name: UNITED STATES of America, Plaintiff-Appellant, v. CITY OF ALEXANDRIA Et Al., Defendants-Appellees

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 10, 1980

Citation: 614 F.2d 1358

Docket Number: 78-1436

Court Abbreviation: 5th Cir.