Blake v. City of Los Angeles

• Decision Date: 02 May 1979
• Docket Number: 77-3601,Nos. 77-3595,s. 77-3595
• Citation: 595 F.2d 1367
• Parties: 19 Fair Empl.Prac.Cas. 1441, 53 A.L.R.Fed. 1, 19 Empl. Prac. Dec. P 9251 Fanchon BLAKE et al., Plaintiffs-Appellants, v. CITY OF LOS ANGELES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1367

595 F.2d 1367

19 Fair Empl.Prac.Cas. 1441, 53 A.L.R.Fed. 1,

19 Empl. Prac. Dec. P 9251

Fanchon BLAKE et al., Plaintiffs-Appellants, v. CITY OF LOS ANGELES et al., Defendants-Appellees.

Nos. 77-3595, 77-3601.

United States Court of Appeals Ninth Circuit.

May 2, 1979.

Cecil W. Marr, Deputy City Atty. (argued), Los Angeles, Cal., for plaintiffs-appellants.

Timothy B. Flynn (argued), Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and TANG, Circuit Judges, and SOLOMON, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Appellants brought this class action charging the City of Los Angeles, the Los Angeles Board of Civil Service Commissioners, and Edward M. Davis, then Chief of Police of the Los Angeles Police Department, with sex discrimination in employment in the Los Angeles Police Department ("LAPD"). The appellants represent a class of women who are past, present, and future applicants for, employees in, and retirees from sworn positions in the LAPD. Appellants claimed violations of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 2000e Et seq.), the Fourteenth Amendment of the United States Constitution, and the Civil Rights Act of 1871 (42 U.S.C. § 1983). After certifying the class, the district court granted summary judgment to the appellees. Appellants appeal from the summary judgment, and the City cross-appeals from the class certification order.

We reverse the summary judgment and hold that (1) appellants met their burden of proving a prima facie case that the appellees violated Title VII before July 1, 1973, by maintaining sex-segregated job classifications, and after July 1, 1973, by using selection devices, including a height requirement and a physical abilities test that disproportionately excluded women from employment, (2) appellees' use of sex-segregated job classifications between March 24, 1972, and July 1, 1973, violated Title VII because it was not mandated by business necessity, (3) appellees were not entitled to summary judgment with respect to employment practices used after July 1, 1973, because they failed to show that the questioned employment practices were justified as a matter of law under the required standards for business necessity, (4) the gender-based classification system used by appellees before Title VII became applicable to governmental agencies violated the equal protection clause of the Fourteenth Amendment. Because we reverse and remand the case to the district court for trial, we decline to reach the merits of the class certification order.

FACTUAL BACKGROUND

Prior to July 1, 1973, the LAPD maintained separate, gender-based job classifications in entry-level police positions. Men in the "policeman" classification performed general police patrol assignments and could be promoted through all ranks of the department. Women in the "policewoman" classification generally performed "tasks relating to women and children, desk duty, and administration." Policewomen were barred from regular police patrol assignments and were ineligible for promotion above the level of sergeant. Between 1970 and 1973 no women were appointed to sworn positions in the LAPD, although the department hired more than 2,000 men. The percentage of women in sworn positions in the LAPD declined from 2.62 percent in 1970 to 2.15 percent in 1973.

Beginning on July 1, 1973, the LAPD abandoned the sex-segregated job classifications and established a single entry-level position of "police officer" for both men and women. The department unified its lines of promotion and imposed identical entry requirements on both male and female applicants for "police officer" positions. "Police officers" initially were required to be at least 5' 7 in height; this requirement subsequently was lowered to 5' 6 where it remains today. The department also instituted a physical abilities test, which all applicants for "police officer" positions were required to pass. In 1976, three years after the "unisex" job classification program had been established, women occupied only 2.08 percent of all sworn positions in the LAPD and only 0.48 percent of all positions in the ranks of sergeant and above.

The district court found that appellants' sex discrimination claims spanned three time periods of distinct legal significance. The first period antedated March 24, 1972, when Title VII became applicable to governmental agencies. The district court held that the dual classification system in effect during this period did not violate the equal protection clause of the Fourteenth Amendment because it was "substantially related to and serve(d) . . . the important governmental objective of providing an effective police force." (Blake v. City of Los Angeles (C.D.Cal.1977) 435 F.Supp. 55, 61.)

The second period was between March 24, 1972, and July 1, 1973, the date when the LAPD abolished the sex-segregated job classification system. The district court held that the dual classification system did not violate Title VII during this period because its continuation was justified by "business necessity." The dual classification system was found not to be a violation of the Fourteenth Amendment for reasons mentioned above.

The final period was the time after July 1, 1973, the date when the unisex "police officer" classification was instituted. The district court held that "undisputed facts" established that the entry requirements for police positions, including the height requirement and the physical abilities test, violated neither the Fourteenth Amendment nor Title VII. Appellants' Fourteenth Amendment claim was rejected because the district court found no evidence of discriminatory intent. The district court held that discriminatory intent also must be proved to establish a Title VII violation by an agency of local government. Thus appellants' Title VII claim was rejected, although the district court concluded that the LAPD's height requirement and physical abilities test "imposed a severe adverse impact upon women." (Blake v. City of Los Angeles, supra, 435 F.Supp. 55, 62.) The district court held, alternatively, that no Title VII violation could be shown even under the impact standard of Griggs v. Duke Power Co. (1971) 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, because the height requirement and physical abilities test "are appropriate for the selection of qualified applicants" as a matter of law. (Blake v. City of Los Angeles, supra, 435 F.Supp. at 66.)

I

TITLE VII CLAIMS

Appellants contended that the LAPD violated Title VII before July 1, 1973, by maintaining sex-segregated job classifications, and after July 1, 1973, by using selection devices, including a height requirement and physical abilities test, that disproportionately exclude women from employment. ¹ A three-part inquiry is required to decide whether Title VII has been violated. (Dothard v. Rawlinson (1977) 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786; Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280; DeLaurier v. San Diego Unified School District (9th Cir. 1978) 588 F.2d 674, 676.) The first question is whether plaintiffs have established a prima facie case of employment discrimination. (Dothard v. Rawlinson, supra, 433 U.S. at 329, 97 S.Ct. 2720.) If a prima facie case has been shown, the burden then shifts to the employer to justify the employment practice in question. (Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. 849.) If the employer meets his burden of justification, plaintiffs may then show that alternative selection devices exist that would serve the employer's legitimate interests without discriminatory effects. (Albemarle Paper Co. v. Moody, supra, 422 U.S. at 425, 95 S.Ct. 2362.)

Prima Facie Case of Discrimination

Although the district court recognized that, under Griggs v. Duke Power Co., supra, a prima facie Title VII violation can be established by "the mere showing of a disproportionate impact" of an employment practice on a group protected by Title VII (Blake v. City of Los Angeles, supra, 435 F.Supp. at 63), the court held that the Griggs impact standard could not constitutionally be applied to agencies of state and local government. Relying on Scott v. City of Anniston (N.D.Ala.1977) 430 F.Supp. 508, the district court reasoned that Congress had no constitutional power to impose on state and local governments anti-discrimination standards greater than those compelled by the equal protection clause of the Fourteenth Amendment. Because the Supreme Court in Washington v. Davis (1976) 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, held that proof of discriminatory purpose was needed to establish a violation of the equal protection clause, the same standard must be engrafted on Title VII in actions against state and local governments. The premise of the argument is that "it is simple logic that a statute can be no broader than its Constitutional base." (430 F.Supp. at 515.) The premise is wrong because it misconceives controlling authority interpreting both the Fourteenth Amendment and Title VII.

In Katzenbach v. Morgan (1966) 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, the Supreme Court held that Congress' power under Section 5 of the Fourteenth Amendment to enforce that amendment by "appropriate legislation" is not limited to prohibiting state action that itself violates the Constitution. Katzenbach upheld the constitutionality of Section 4(e) of the Voting Rights Act of 1965, prohibiting certain uses of a literacy test to determine voter qualifications. Although the Supreme Court previously held that use of literacy tests to determine voter qualification did not violate the Fourteenth Amendment (Lassiter v. Northampton County Board of Elections (1959) 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072), Katzenbach held that Congress could determine that legislation banning use of...