Davis v. City of Dallas

Decision Date26 November 1985
Docket NumberNo. 84-1814,84-1814
Parties39 Fair Empl.Prac.Cas. 744, 39 Empl. Prac. Dec. P 35,811, 54 USLW 2308 Brenda DAVIS, Plaintiff-Appellant, v. CITY OF DALLAS, et al., Defendants-Appellees. Cynthia Jayne DURBIN, Plaintiff-Appellant, v. CITY OF DALLAS, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Wilson, Williams & Molberg, Kenneth H. Molberg, Dallas, Tex., for plaintiff-appellant.

Joseph G. Werner, Dallas, Tex., Vonciel Hill, Legal Office, Dallas/Fort Worth Reg. Airport, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, REAVLEY, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge.

The appeal in this Title VII action is brought by a class of black plaintiffs challenging the district court's denial of their requested injunction to prohibit the City of Dallas, Texas from utilizing three specified eligibility criteria for hiring of its police officers. The criteria at issue concern educational attainments, marihuana usage, and driving records. The district court, although finding no discriminatory intent in the adoption or employment of these criteria, determined that they had an adverse disparate impact on black applicants, but were nevertheless sufficiently job related to be valid. In this appeal, plaintiffs challenge the job relatedness determination.

Facts and Proceedings Below

The Dallas Police Department requires that applicants for positions on its police force, at the time of application, (1) must have completed forty-five semester hours of college credit with at least a "C" average at an accredited college or university, (2) must not have a history of "recent or excessive marijuana usage" as determined by the Department's marihuana usage chart, and (3) must not have been "convicted of" more than three "hazardous traffic violations" in the twelve months, nor convicted of more than six such violations in the twenty-four months, preceding the date of application. Once an applicant has been hired, he or she must go through academy training, field training, and probation before attaining "permanent" status; the "four-step process leading from citizen to sworn officer [lasts] ... approximately 95 weeks." Davis v. City of Dallas, 483 F.Supp. 54, 56 (N.D.Tex.1979) (Higginbotham, J.). Only the initial hiring stage is at issue in this appeal.

The Department rejected appellant Brenda Davis for employment on the ground that she had falsified her employment application; she alleged that she was rejected on the ground that she was a black female. Appellant Cynthia Jayne Durbin was hired as an officer, but subsequently was discharged on the ground that her performance during field training was unsatisfactory; she alleged that her dismissal was gender based. Both Davis and Durbin filed actions against the City of Dallas and certain officials alleging employment discrimination in violation of Title VII, 42 U.S.C. Sec. 2000e, et seq. In July 1978, on motion of the plaintiffs, the two cases were certified as class actions. Davis and Durbin acted as class representatives on behalf of all women and blacks who had been denied permanent employment with the Department from August 1, 1973, to the date of certification.

Following consolidation, the liability portion of the case was tried to the bench in September 1979. The district court held that the City of Dallas had discriminated against blacks in its hiring of police officers but not against women. Class-wide liability was established with regard to the hiring of blacks. The court reached this conclusion after finding that although "the City was acting in good faith," its selection process had an adverse disparate impact on black applicants. Davis, 483 F.Supp. at 58-59. This disparate impact was not negated by the City's special affirmative efforts to recruit blacks. Id. Subsequently, the parties attempted to eliminate or modify selection devices in the Department's hiring criteria. The parties, however, failed to reach agreement on some selection criteria.

In March 1980, the district court denied the defendants' motion to reconsider its finding of liability as to the class of black applicants. The court also noted that the plaintiffs' complaint included a request for an injunction barring the defendants from using discriminatory selection criteria in future police officer hiring. The court observed that the City was in the process of conducting a study on whether the challenged selection criteria were job related, and that these criteria might be insulated from injunction if the defendants could show that they "have a significant and demonstrable relationship to performance as a police officer." The court directed the plaintiffs to submit a proposed injunction, after which a hearing would be scheduled for taking any additional validation evidence. Davis v. City of Dallas, 487 F.Supp. 389, 394-95 (N.D.Tex.1980) (Higginbotham, J.).

In June 1981, the plaintiffs applied for injunctive relief. The case was transferred to a different district judge. After considerable delay, the district court held an evidentiary hearing on plaintiffs' request for an injunction. All but three of the challenged criteria had already been eliminated or modified to the satisfaction of the parties. The sole issue was whether the three remaining challenged requirements, concerning college credit, marihuana usage, and hazardous traffic violation convictions, were job related. The court concluded that they were, and denied injunctive relief on August 24, 1984.

Discussion

The City conceded below that the challenged requirements have a statistically significant disparate impact on blacks. On appeal, appellants argue that the district court erred in finding that the City sustained its burden of establishing the validity or job relatedness of the three challenged criteria. Having determined that the district court's findings that the three requirements are job related are not clearly erroneous, 1 we affirm the denial of the requested injunction. We examine the three challenged conditions in turn.

I. College Credit Requirement

Appellants argue that the City at most has established that the requirement of forty-five hours of credit at an accredited college or university might tend to improve or enhance police performance. They argue that appellees failed to meet their burden of proving that the requirement is a business necessity in the sense that applicants who lack the requisite hours could not perform adequately in the position of police officer. Our examination of appellants' argument requires an analysis of the development of the business necessity or job relatedness defense in Title VII disparate impact suits.

In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court addressed whether an employer was barred under Title VII of the Civil Rights Act of 1964 2 from requiring a high school diploma or passage of a standardized general intelligence test as a condition to employment in or transfer to higher paying skilled laborer jobs where (a) the job requirements had not been shown to be "significantly related to successful job performance," (b) the requirements operated to disqualify blacks at a substantially higher rate than whites, and (c) the skilled laborer positions in question previously had been filled only by whites "as part of a longstanding practice of giving preference to whites." 91 S.Ct. at 851. The Court concluded that even though there was no evidence that the requirements had been instituted for a racial purpose, their use was barred under Title VII. The Court wrote:

"The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." 91 S.Ct. at 853.

The Court, however, noted that Congress did not intend by Title VII "to guarantee a job to every person regardless of qualifications." 91 S.Ct. at 853. The Court wrote:

"In short, the [Civil Rights] Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications.

"... The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.

"....

"... Congress has placed on the employer the burden of showing that any given requirement [which has a disparate impact on a racial group] must have a manifest relationship to the employment n question." 91 S.Ct. at 853-54 (emphasis added).

The Court noted that no showing of job relatedness had been made by the employer, and consequently barred future use of the high school education requirement as a condition to employment at that particular company.

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the Court examined the Griggs requirement that any condition to employment having a disparate impact on blacks must be shown by the employer to be justified by business necessity. Albemarle was a class action by present and former black employees at a paper mill who alleged, inter alia, that a company policy requiring applicants for the skilled...

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