Williams v. City of New Orleans

Decision Date23 April 1984
Docket NumberNo. 82-3435,82-3435
Citation729 F.2d 1554
Parties34 Fair Empl.Prac.Cas. 1009, 34 Empl. Prac. Dec. P 34,311 Larry WILLIAMS, et al., Plaintiffs-Appellants, v. The CITY OF NEW ORLEANS, etc., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

O. Peter Sherwood, New York City, Ronald L. Wilson, New Orleans, La., for Williams.

Gilbert R. Buras, City Atty., Galen Brown, Asst. City Atty., New Orleans, La., for City of New Orleans.

Ralph D. Dwyer, Jr., New Orleans, La., for Civil Service Commission.

Elliott C. Lichtman, Donna R. Lenhoff, Women's Legal Defense Fund, Washington, D.C., for amicus Equal Rights Advocates, et al.

Frank W. Jackson, Supervising Asst. Corp. Cnsl., City of Detroit, Detroit, Mich., for amicus City of Detroit.

Leroy D. Clark, Center for National Policy Review, Catholic University School of Law, Washington, D.C., for amicus Center for National Policy Review & Wm. O. Douglas Inquiry.

Jeffrey C. Martin, Richard M. Sharp, Richard Talbot Seymour, Lawyers' Committee for Civil Rights, Washington, D.C., for amicus Lawyers' Committee for Civil Rights.

Herman Schwartz, American University, Washington, D.C., for amicus-Douglas Inquiry.

Kenneth E. Wile, New York City, for amicus Mexican American & Puerto Rican Legal Defense.

Samuel Rabinove, New York City, for amicus-Am. Jewish Committee.

Robert E. Williams, Washington, D.C., for amicus-Equal Emp. Advisory Council.

Dale C. Wilks, argued, New Orleans, La., for intervenors-Perez, Etc.

Sidney Bach, New Orleans, La., for Venezia, et al.

Lynne W. Wasserman, New Orleans, La., for Cindy Duke, et al.

William Bradford Reynolds, argued, Charles J. Cooper, Mark Disler, U.S. Dept. of Justice Civil Rights Div., Washington, D.C., for U.S.A.

Ralph S. Whalen, New Orleans, La., for Lombas, et al.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BROWN, WISDOM, GEE, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges *.

JERRE S. WILLIAMS, Circuit Judge:

The disposition of this appeal is grounded in the amount of discretion properly given a district court in its decision to enter or disallow a proposed consent decree in a Title VII discrimination suit. We hold that the district court did not abuse its discretion by refusing to approve the proposed consent decree, and we affirm the holding of the district court.

The plaintiffs are a class of black applicants for positions with and members of the New Orleans Police Department. The suit is brought against the City of New Orleans, the Civil Service Commission and individual officials, claiming racial discrimination under Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000e et seq. The class complained of discriminatory policies in the selection, training and promotion of city police officers.

On October 13, 1981, the day the trial was scheduled to begin, the parties announced that they had settled the case and submitted their proposed consent decree to the district court for its approval. The 33-page proposed decree governed "virtually every phase of an officer's employment by the New Orleans Police Department" (NOPD). 543 F.Supp. 662, 668. (E.D.La.1982). The decree provided for significant changes in the NOPD's recruiting, hiring, training, testing and promotion standards and procedures.

Under the settlement defendants were required to send black officers on recruiting missions to black neighborhoods and schools. Black applicants would then be assigned "buddies" to guide them through the application process. The defendants agreed to shorten the application process itself and expeditiously address any problems associated with the process. New entry level procedures would be adopted under the settlement to assure that the proportion of blacks who graduated from the police academy was no lower than the proportion of blacks who passed the entry level examination. Training sessions were planned to help applicants prepare for the Police Recruit examinations, and black as well as white tutors and instructors would be made available for consultation. The proposed decree eliminated the use of general intelligence tests. In addition, it required the City to create an "Academy Review Panel", half of the members to be composed of black officers, to review any decision to dismiss a recruit. Any officer who was the subject of repeated citizen complaints could not serve as a police instructor.

The portion of the settlement here in issue has to do with officer promotions under the proposed decree. The City agreed to adopt procedures so that the proportion of whites appointed to each subclassification of officers would not exceed the proportion of whites actually eligible for that position. The City agreed to create 44 new supervisory positions immediately and fill all 44 positions with black officers. After this, whenever a supervisory position became available, the settlement provided that one black officer be promoted for every white until blacks constituted 50% of all ranks within the NOPD.

The settlement streamlined the requirements to be fulfilled before applying for a supervisory position, and implemented new, non-discriminatory selection criteria. Further, if a black officer failed to complete the probationary period pursuant to promotion, the settlement required that the vacancy be filled by another black officer. Content-valid tests were mandated and any use of a test item with a "statistically significant adverse impact against blacks" was disallowed.

Finally, the proposed decree provided for a $300,000 backpay fund to the plaintiff class, awarded costs and attorneys' fees to the plaintiffs, and imposed extensive reporting obligations on the defendants.

When the consent decree was submitted, objections were filed by classes of female officers, Hispanic officers, and white officers, who were granted leave to intervene for the limited purpose of challenging the decree. 1 Objections were also filed by eighteen members of the black plaintiff class.

After a four-day fairness hearing, during which the district court heard testimony from individual class members, intervenors and experts, the district court decided to withhold approval of the consent decree. While indicating approval of every other provision of the decree, Judge Sear concluded that the provision requiring black and white officers to be promoted on a one-to-one ratio until blacks constituted 50% of all ranks within the NOPD exceeded the court's remedial objectives and seriously jeopardized the career interests of non-black officers. Thus, the court did not approve the decree but encouraged the parties to modify the decree in a manner consistent with its opinion and resubmit it for approval. Plaintiffs appealed this decision, 2 and a panel of this court by a divided vote concluded that the district court had abused its discretion in conditioning its approval of the proposed consent decree on deletion of the promotion quota. The panel remanded the case with directions for Judge Sear to sign the decree. Williams v. City of New Orleans, 694 F.2d 987 (5th Cir.1982).

The United States subsequently sought and was granted permission to intervene and file a suggestion of rehearing en banc. On February 14, 1983, we granted the petition for an en banc rehearing, 694 F.2d 987, 988.

I. Per Se Attack

We first respond to the intervenor-government's argument that affirmative action remedies, such as the disputed provision in this case, are never permissible under Title VII. The plaintiffs object to the trial court's failure to impose a firm quota system on the police department to remedy past violations of Title VII. In marked contrast, the government argues that the district judge had no power at all to order the NOPD to employ any kind of quota system to remedy past discrimination. According to the government's argument, the last sentence in Sec. 706(g) of Title VII proscribes the use of any remedy which is not limited to actual victims of past discrimination. 3 Since the one-to-one quota system in the proposed consent decree was designed to benefit all blacks in the plaintiff class, and not just actual victims of discrimination, the government urges us to find that the quota provision violated Title VII.

We cannot accept this per se rule; the statute does not so require. As we said in United States v. City of Miami, 614 F.2d 1322, "at this point in the history of the fight against discrimination, it cannot be seriously argued that there is any insurmountable barrier to the use of goals or quotas to eradicate the effects of past discrimination." 614 F.2d 1322, 1335 (5th Cir.1980), aff'd in part and in part vacated and remanded on other grounds, 664 F.2d 435 (5th Cir.1981) (en banc).

This Court has long upheld the use of affirmative action in consent decrees under Title VII and has not required that relief be limited to actual victims of discrimination. See Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc) cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); United States v. City of Alexandria, 614 F.2d 1358 (5th Cir.1980). Further, the use of quotas or goals under Title VII without regard to specific victims as one means to remedy past discrimination has been upheld regularly throughout the federal courts of appeals. See, e.g., Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2d Cir.1974); Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 8, 39 L.Ed.2d 95 (1971); Patterson v. American Tobacco Co., 535 F.2d 257, 273-74 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 315, 50 L.Ed.2d 286 (1976); United States v. International Brotherhood of Electrical...

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