Hull v. Cason

Decision Date26 December 1978
Citation151 Cal.Rptr. 438,88 Cal.App.3d 768
Parties, 18 Fair Empl.Prac.Cas. (BNA) 1379, 18 Empl. Prac. Dec. P 8920, 19 Empl. Prac. Dec. P 9164 Glenn HULL et al., Plaintiffs, Appellants and Respondents, v. Dallas CASON et al., Defendants, Appellants and Respondents, David T. Andrade et al., Interveners and Appellants, James Michael Records et al., Claimant-Interveners and Appellants. Civ. 38801, 40034 and 41036.
CourtCalifornia Court of Appeals Court of Appeals

Bonjour, Gough, Stone & Remer, Kerry M. Gough, Hayward, Clifford Sweet, Malcolm Hunter, Legal Aid Society of Alameda County, Oakland, Bancroft, Carter, Ogren, Porter & White, James S. White, Oakland, for plaintiffs, appellants and respondents.

Davis, Cowell & Bowe, Duane W. Reno, Philip Paul Bowe, San Francisco, David A. Self, City Atty., William C. Sharp, Asst. City Atty., Oakland, for defendants, appellants and respondents.

Carroll, Burdick & McDonough, Christopher D. Burdick, San Francisco, for interveners and appellants.

Orrick, Herrington, Rowley & Sutcliffe, San Francisco, Beilock, Sax & Wilson, Brian M. Sax, Oakland, for claimant-interveners and appellants.

ELKINGTON, Associate Justice.

The issue tendered us on these appeals is whether the Fourteenth Amendment, 1 and the Civil Rights Act of 1964 (tit. VII), 2 permit the State of California, or its courts, to discriminate against nonminority persons (Caucasians) 3, who themselves are individually without fault, on the basis of race alone, in order to ameliorate the effects of past racial discrimination against minority persons generally.

"No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups." (Regents of University of California v. Bakke (1978) --- U.S. ----, ----, fn. 36, 98 S.Ct. 2733, 2752, 57 L.Ed.2d 750.) It constitutes " 'an unfortunate and ignominious page in this country's history.' " (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280.)

The Fire Department of the City of Oakland (City) has not gone untouched by such practices. Like many fire departments throughout the state and nation it has a shameful Historical record of racial discrimination in the employment and promotion of fire fighters. The origin is obscure and subtle, and the blame may be widely spread. Some of it, such as separate dining facilities and sleeping quarters for the races, will probably be traced to the high judicial approval of Plessy v. Ferguson (1896) 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256.

But the record before us uncontrovertibly establishes that over the last decade and well beyond, the City has in good faith engaged in a well-funded and "monumental" effort to recruit minority persons as fire fighters. "Goals" and "targets" have been set for achieving such a "racial and ethnic makeup of personnel in all job categories (as) will bear a 'reasonable ratio balance' to the racial and ethnic composition of the population of Oakland; . . ." The campaign, mainly through the "mass media," had produced many well-qualified minority person fire fighters. But the progress had been slow, for new appointments and promotions to higher rank will ordinarily depend upon vacancies caused by retirement and death. And as pointed out in the superior court, "where the salary is way above that of an average high school graduate (the City's efforts generated interest among persons) who had never been interested before, and who are not capable of performing, in no way." Such persons were unfortunately, but necessarily, eliminated in the civil service competition for fire fighter jobs.

The current good faith of the City is manifest. It was demonstrated, perhaps overdemonstrated, by the most recent oral examination for "hoseman" (the entering class of fire fighter) candidates; there "29% Of the Caucasians failed, 21% Of the Blacks failed, none of the Spanish-surnamed individuals failed, 20% Of the Asians failed, and 33% (1 out of 3) of the American Indians failed; . . ."

The results of the last entrance examinations prior to the commencement of plaintiffs' action are particularly notable. In order of the candidates' passing grades, the first was a minority person. Of the first 30, 16 were minority persons. And of the next 70 passing grades, the "candidates broke down ethnically almost 50-50 . . . ." Thus, minority persons constituted about 51 percent of the group first to be called, a ratio precisely the same as the estimated proportion of minority persons in the City's population. Each of these successful candidates had passed the fire department's prescribed written and oral examinations, physical agility tests, and height and weight criteria.

Thereafter a group of black minority persons and the Oakland Black Fire Fighters Association commenced the instant class action in mandate against the City. They contended principally (1) that the percentage of minority persons in all job levels of the fire department bore no reasonable relationship to their percentage in the population of the City, and (2) that the required examinations, tests and standards "do not substantially relate to the performance of firefighting duties." They sought a writ of mandate calculated to "dissipate the effect of (the fire department's) History of discriminatory hiring and promotion . . . ." (Emphasis added.)

Caucasians who were fire fighters, or who had qualified for such jobs by civil service examinations, or who aspired to hold such jobs, joined with the City as interveners in defense of plaintiffs' action. They contended that their employment or promotion chances would be lost or jeopardized by the affirmative relief sought by plaintiffs.

Each of the respective sides relied principally upon the Fourteenth Amendment's "equal protection" clause and the Civil Rights Act of 1964 (hereafter sometimes Civil Rights Act). (See fns. 1 and 2, Ante.) Plaintiffs argued that those high mandates authorized, and Compelled, "affirmative relief" in order to compensate for the fire department's historical job and promotion discrimination against minority persons generally. The City and the interveners contended that the affirmative relief sought would itself discriminate against Caucasians bearing no responsibility for plaintiffs' grievances, solely on account of their race. This, they insisted, was Forbidden by the Fourteenth Amendment and by the Civil Rights Act.

The City and the Caucasian interveners, lacking knowledge of what form, if any, of affirmative relief would be granted by the superior court, did not expressly plead the Civil Rights Act as a defense to the action. But implicit, indeed explicit, in the record is their reliance, in part, upon that statute. Furthermore, the relevant facts being uncontroverted, and the issue having been fully briefed and argued, the question is one of law such as may always be considered on appeal, even if not raised below. (Century Bank v. St. Paul Fire & Marine Ins. Co. (1971) 4 Cal.3d 319, 324, 93 Cal.Rptr. 569, 482 P.2d 193; Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534.)

Following a trial the superior court concluded that "In order to ameliorate the effect of past discriminatory practices " (emphasis added) by the fire department, "affirmative relief is necessary." The affirmative relief decreed by the ensuing judgment follows:

"In order to ameliorate the effects of past racial discrimination, appointment of fire fighters . . . shall (for 5 years) be at the rate of at least two racial minorities for each Caucasian . . . . In order to ameliorate the effects of past racial discrimination, promotion of fire fighters for . . . five years shall be at the rate of at least one racial minority for five Caucasians."

The superior court also found that each, and all, of the fire department's written examinations, physical agility tests, height and weight standards, and the "time in grade requirements and seniority weighting" in respect of promotions, were invalid. Their invalidity was based upon (1) the need "to ameliorate the effects of past racial discrimination," (2) their "racially disparate impact" upon minority persons, and (3) their lack of "job relation." The judgment accordingly, and effectively, invalidated the several requirements and ordered minority persons to be accepted for employment, or promoted, in accordance with the judicially established "quotas" upon passing an oral examination alone.

It is proper here to emphasize that the superior court made no finding and the evidence would not reasonably permit such a finding that in its campaign to enlist minority person fire fighters, or in its examinations, tests and other employment criteria, or their administration, the City had acted in bad faith, or with a purpose or intent to discriminate, or otherwise than to achieve a racially balanced fire department consisting of persons properly qualified for their respective jobs.

The City and the interveners vigorously (and correctly) point out that the Caucasians whose job or promotion opportunities are lessened or frustrated by the judgment, bear no personal blame for the past racial discrimination found by the superior court. They also, with record justification, point to the lack of evidence or findings that any of the named plaintiffs or members of the class represented by them, had personally been victimized by such past racial discrimination. Their arguments may reasonably be condensed to the contention that the Fourteenth Amendment and the Civil Rights Act proscribe the judgment's discrimination On account of race alone, against such Caucasians as were found better qualified for fire fighter jobs and promotion, by fairly administered civil service examinations, tests and standards.

Before entering upon our consideration of these issues, we dispose of an...

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3 cases
  • Association Against Discrimination in Employment v. City of Bridgeport, s. 413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 23, 1979
    ...part); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (original 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 (Ct.App.1978).10 See EEOC v. Local 638, supra, 532 F.2d at 833-34 (Feinberg......
  • Golden v. Local 55 of Intern. Ass'n of Firefighters, 78-3267
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 2, 1980
    ...filed in Alameda Superior Court, No. 451337-9. An appeal from part of the decision was heard by the First District, 88 Cal.App.3d 768, 151 Cal.Rptr. 438 (1st Dist. 1978). The California Supreme Court granted hearing, No. SS 24-004. On June 19, 1980, the California Supreme Court retransferre......
  • Hull v. Cason, S.F. 24004
    • United States
    • United States State Supreme Court (California)
    • June 19, 1980
    ...June 19, 1980. BIRD, Chief Justice. The above entitled cause is retransferred to the Court of Appeal, First District, Division One, 151 Cal.Rptr. 438, for reconsideration in light of Price v. Civil Service Commission (1980) 26 Cal.3d 257, 161 Cal.Rptr. 475, 605 P.2d 1; Dothard v. Rawlinson ......

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