Hiatt v. City of Berkeley

CourtCalifornia Court of Appeals
Writing for the CourtKANE; TAYLOR, P. J., and ROUSE
Citation85 Cal.App.3d 29,149 Cal.Rptr. 155
Parties, 18 Fair Empl.Prac.Cas. (BNA) 233, 18 Empl. Prac. Dec. P 8712 Rayford R. HIATT et al., Plaintiffs, Respondents and Appellants, v. CITY OF BERKELEY et al., Defendants, Appellants and Respondents. Civ. 39033.
Decision Date25 September 1978

Page 155

149 Cal.Rptr. 155
85 Cal.App.3d 29, 18 Fair Empl.Prac.Cas. (BNA) 233,
18 Empl. Prac. Dec. P 8712
Rayford R. HIATT et al., Plaintiffs, Respondents and Appellants,
v.
CITY OF BERKELEY et al., Defendants, Appellants and Respondents.
Civ. 39033.
Court of Appeal, First District, Division 2, California.
Sept. 25, 1978.
Opinion on Rehearing, see 151 Cal. Rptr. 895.

Page 157

Michael S. Lawson, City Atty., Berkeley, Donald P. McCullum, Charles O. Triebel, Jr., Oakland, for defendants, appellants and respondents.

Ronald W. Yank, Christopher D. Burdick, Carroll, Burdick & McDonough, San Francisco, for plaintiffs, respondents and appellants.

Allan Yannow, Mark S. Rudy, San Francisco, for amicus curiae on behalf of plaintiffs-respondents; Arnold Forster, Jeffrey Simensky, of counsel.

KANE, Associate Justice.

Plaintiffs, employees of the Berkeley Fire Department (hereafter respondents), brought this action against the City of Berkeley, its City Council, and certain city officials (hereafter appellants or City of Berkeley), challenging the promotional procedures laid down in the city's Affirmative Action Program (hereafter AAP or Program). Respondents invoked the Fourteenth Amendment of the United States Constitution, article I, section 21 (now § 7) of the California Constitution, 42 United States Code, sections 1983, 2000d, 2000e-2 (Civil Rights Act of 1964), and California Labor Code, section 1420, et seq., claiming that the attacked provisions of AAP set up rigid quotas in hiring and promoting city employees which were based solely on race or sex and therefore violated both the constitutional principles of equal protection of laws and the provisions of the Civil Rights Act of 1964 proscribing discrimination premised on race, color, national origin or sex. After trial, a judgment and permanent injunction were issued in favor of respondents. The appeal is taken from the judgment awarding damages to respondents and enjoining City of Berkeley from enforcement of certain provisions of AAP; the cross-appeal is from a denial of attorney's fees and a refusal to promote two of the respondents.

Background Facts

AAP, the centerpiece of the legal dispute, was adopted by the City of Berkeley in 1972 pursuant to City Council Resolution No. 45,257-N.S., and was amended in 1974 in order to conform to the 1970 census figure. The stated goal of AAP is to achieve and maintain "proportional employment" for all minorities 1 in each city department, job classification, and salary category. In the definition of AAP, proportional employment means that "the percentage of each race and sex in the City of Berkeley work force shall be approximately equal to that of the percentage of each race and sex in the Berkeley population as a whole."

In order to attain the stated goal, AAP introduced a wide ranging, elaborate program which purported to base the city's employment practices solely on race and sex rather than on competitive, free examinations and merit as prescribed by the city Charter (see discussion, infra). Thus, at the very outset the Program declared that "The 'minimum qualifications' principle shall guide the establishment of job requirements for all City job classifications." The Program then provided that the personnel department shall use written tests on a nonranking basis only, and the qualification of the applicants shall be determined on the results of oral interviews. The Program made it mandatory that the interview panels include at least one minority person and one woman; while at the same time it precluded the panel members from eliciting information regarding the applicant's test scores, performance appraisals, sick leave record and/or previous disciplinary actions. The Program next provided that the employment lists be restricted to three general categories ("Outstanding," "Well Qualified," and "Qualified"), and that the names of the candidates in each qualifying category be listed in alphabetical order rather than according to the actual test scores achieved on the examinations. The Program also ordered that the appointment register (a list of all qualified applicants

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taken from the employment list) be arranged in order of hiring priorities; that all future vacancies in the city's civil service be filled from the appointment register; that all applicants be interviewed and recommended in order of hiring priorities; and, most importantly, that vacancies in city service be filled on the basis of hiring priorities and underutilization, unless upon the request of the department head a waiver is granted by the city manager.

The most egregious, racially discriminative nature of AAP was demonstrated by the scheme under which the so-called "hiring priorities" and "underutilization" 2 were to be determined. For the purpose of achieving the overall policy goal of proportional employment, AAP set up a rigid quota system which worked as follows: First, the Program classified the city population by race and sex. Next, it required that the race and sex of the employees be ascertained within each department, job classification and salary category. As a following step, the percentage of race and sex was to be compared to the population of the City of Berkeley as a whole, as indicated in the census. If the percentage of a particular race or sex in a department, job classification or salary category was below its percentage in the Berkeley population, the group was deemed "underutilized" and became a priority group for hiring and promotion.

The present lawsuit grew out of the application of AAP in filling certain vacancies in the Berkeley fire department. As the record indicates, on or about June 5, 1974, there were four vacancies for the promotional position of fire captain and three for the job title of fire lieutenant. The city had eligibility lists with respect to both job categories. Contrary to the mandate of AAP, the lists were compiled on the basis of competitive examinations and contained a numerical ranking of the candidates based upon their performance in the examinations. The eligibility list for fire captain comprised nine names. Although respondents Hiatt and Rinne ranked higher on the list than Melvin E. Thompson, a minority candidate, Thompson was promoted to fire captain solely because of his race. The very same occurred with regard to the promotion of Clinton Beacham, a minority employee, to the position of fire lieutenant. The record affirmatively shows that despite the fact that Beacham ranked tenth in the group, and respondents Salter, Parks, Jones, Littley, Wolf and Leimone were more qualified and outranked Beacham, he was promoted solely on the basis of his race.

While it appears that a racial imbalance existed in the command structure of the fire department, the evidence introduced at trial indicated, and the superior court so found, that the City of Berkeley had not discriminated in the past on any occasion against any person on the ground of his or her race or sex concerning employment opportunities with the City of Berkeley in general or with its fire department in particular. The record likewise disclosed that the City of Berkeley had adopted AAP in recognition of a "history of discriminatory employment practices throughout all segments of American society" but the Program contained no legislative declaration of past discriminatory conduct on the part of the City of Berkeley itself.

Based upon the foregoing considerations, the trial court Inter alia concluded that the promotions under challenge were made solely on the basis of race, and that lesser qualified persons were appointed to the positions of fire captain and fire lieutenant pursuant to the directives of AAP. The court also held that certain provisions of AAP directing or facilitating employee appointments or promotions on the sole basis of race or sex, rather than on merit, were unduly discriminatory and therefore violative

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of the constitutional and statutory provisions proscribing racial and sexual discrimination. 3 In accordance therewith, the trial court enjoined appellants: (1) from promoting any person except on the basis of eligibility lists established by open, competitive examination which shall reflect the scores achieved by the candidate on both the written and oral examinations as prescribed by city Charter, article XVI, section 119; (2) from denying promotion to any person on the grounds of race, color, sex, national origin or ancestry or from granting any applicant for promotion any preference or advantage on the aforestated bases; and (3) from adopting or implementing any personnel policy or system which fails to promote candidates on the basis of open, competitive and free examinations uniformly and fairly administered to each candidate.

The Appeal

Although appellants raise various issues on appeal, the central question before us is whether in the factual setting here presented the employment practices outlined in AAP which discriminate against the white majority purely on the basis of race are permissible or justifiable under the federal or California Constitutions and/or the Civil Rights Act of 1964. In resolving this sensitive and highly controversial dispute, we discuss the issues on both constitutional and statutory grounds.

(a) Constitutional Analysis : At the outset we emphasize that while both the Fourteenth Amendment of the United States Constitution and the equal protection clause of the California Constitution, which was patterned after and " 'substantially the equivalent' " of the language of the Fourteenth Amendment (Serrano v. Priest (1971) 5 Cal.3d 584, 596, fn. 11, 96 Cal.Rptr. 601, 487 P.2d 1241; McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 140 Cal.Rptr. 168), accord any person the equal protection of the laws in plain and unequivocal language and without qualification, 4 it is well settled that different classifications of citizens, including...

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1 practice notes
  • Association Against Discrimination in Employment v. City of Bridgeport, Nos. 413
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 23, 1979
    ...panel decision), modified, 452 F.2d 327. See also Hull v. Cason, 151 Cal.Rptr. 438 (Calif.Ct.App.1978); Hiatt v. City of Berkeley, 149 Cal.Rptr. 155 10 See EEOC v. Local 638, supra, 532 F.2d at 833-34 (Feinberg, J., concurring); Patterson v. Newspaper & Mail Deliverers' Union, supra, 514 F.......
1 cases
  • Association Against Discrimination in Employment v. City of Bridgeport, Nos. 413
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 23, 1979
    ...panel decision), modified, 452 F.2d 327. See also Hull v. Cason, 151 Cal.Rptr. 438 (Calif.Ct.App.1978); Hiatt v. City of Berkeley, 149 Cal.Rptr. 155 10 See EEOC v. Local 638, supra, 532 F.2d at 833-34 (Feinberg, J., concurring); Patterson v. Newspaper & Mail Deliverers' Union, supra, 51......

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