Hull v. Cason

• Citation: 114 Cal.App.3d 344,171 Cal.Rptr. 14
• Court: California Court of Appeals
• Decision Date: 07 January 1981
• Parties: , 25 Empl. Prac. Dec. P 31,627 Glenn HULL et al., Plaintiffs and Appellants, v. Dallas CASON et al., Defendants and Appellants; David T. Andrade et al., Interveners and Appellants, James Michael Records et al., Claimant-Interveners and Appellants. Civ. 38801, Civ. 40034 and Civ. 41036.

Page 14

171 Cal.Rptr. 14

114 Cal.App.3d 344, 25 Empl. Prac. Dec. P 31,627

Glenn HULL et al., Plaintiffs and Appellants, v. Dallas CASON et al., Defendants and Appellants;

David T. Andrade et al., Interveners and Appellants,

James Michael Records et al., Claimant-Interveners and Appellants.

Civ. 38801, Civ. 40034 and Civ. 41036.

Court of Appeal, First District, Division 1, California.

Jan. 7, 1981.

Opinion on Denial of Rehearing Jan. 26, 1981.

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

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

Carroll, Burdick & McDonough, Christopher D. Burdick, Ronald Yank, David Handsher, San Francisco, for interveners and appellants.

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

Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, for American Civil Liberties Union of Northern California, Inc.

Fred Okrand, Mark D. Rosenbaum, Terry Smerling, Robert Stanley Florey III, Los Angeles, for ACLU Foundation of Southern California.

David A. Garcia, Dale L. Brodsky, Marjorie E. Cox, Marjorie Gelb, San Francisco, for Fair Employment Practice Commission, Division of Fair Employment Practices, Department of Fair Employment & Housing.

Lutz Alexander Prager, Susan Rubenstein, Issie L. Jenkins, Joseph T. Eddins, Washington, D. C., for Equal Employment Opportunity Commission.

Allan Yannow, San Francisco, Arnold Forster, Jeffrey Sinensky, Richard Weisz, New York City, for Anti-Defamation League.

ELKINGTON, Associate Justice.

Our opinion and decision on the above captioned appeals was filed December 26, 1978. The Supreme Court granted a hearing after which, June 19, 1980, it made the following order:

"The above entitled cause is retransferred to the Court of Appeal, First District, Division One, 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 (1977) 433 U.S. 321, 328-332, 97 S.Ct. 2720, 2726-2728, 53 L.Ed.2d 786; and Firefighters Institute v. City of St. Louis, Mo. (8th Cir. 1978) 588 F.2d 235, 239-242, cert. den. sub nom. Banta v. Firefighters Institute (1979) 443 U.S. 904, 99 S.Ct. 3096, 61 L.Ed.2d 872."

We have reconsidered the cause as directed, and conclude that we had earlier correctly resolved it. We state our reasons.

The superior court had adjudged, among other things, that "(i)n order to ameliorate the effects of past racial discrimination, (the City of Oakland's) appointment of fire fighters ... shall (for 5 years) be at the rate of at least two racial minorities for each Caucasian ...." (And see p. 21, infra.)

As will be seen hereafter and from the foregoing editorial summary and headnotes, the appeals concern the developing concept, sometimes described by the catch phrase "affirmative action," of remedying evils of the states' and nation's historical racial discrimination.

There are few who disagree as to the pressing need for such affirmative action, but there is broad dispute as to the means of its implementation. (See, e. g., University of California Regents v. Bakke (1978) 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750; Price v. Civil Service Com. (1980), 26 Cal.3d 257, 161 Cal.Rptr. 475, 604 P.2d 1365 (petn. for cert. filed June 18, 1980, 49 U.S.L.Week 3001).) Some believe that present racial discrimination in public employment against individually faultless nonminority persons is rationally, and constitutionally, acceptable, as a sort of atonement for sins of earlier days. Others insist that there may be no public racial discrimination at all; they side with Justice William O. Douglas in his dissent in DeFunis v. Odegaard (1974) 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164, passim : " 'The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.' " "Minorities in our midst who are to serve actively in our public affairs should be chosen on talent and character alone, ... There is no constitutional right for any race to be preferred.... The Equal Protection Clause commands the elimination of racial barriers, not their creation ...."

We first consider the case of Price v. Civil Service Com., supra, 26 Cal.3d 257, 161 Cal.Rptr. 475, 605 P.2d 1.

In 1974 Sacramento County was concerned with the relative paucity of minority persons in the county's employ. Through its civil service commission it conducted a series of hearings into the county's past hiring practices in an attempt to ascertain the reasons for the underrepresentation and to identify potential courses of action to ameliorate the situation. The hearings disclosed a number of discriminatory practices continuing to the date of the hearings, which operated to screen out a disproportionate number of minority job applicants. A rule was adopted permitting the civil service commission, after public hearing and a finding of existing racial discrimination, to "order that minority personnel shall be appointed to the classification involved in accordance with an alternating ratio until a specified number of minority persons have been hired." Such an order remained subject to modification, or rescission, according to the " 'needs of the service, changed circumstances, problems encountered in implementing the order, and information which was not previously considered ....' " (P. 265, 161 Cal.Rptr. 475, 605 P.2d 1.)

Thereafter a county department was found with a near complete absence of minority person employees. The civil service commission took no immediate action, relying upon the department head's assurances that he would undertake additional efforts to recruit and hire such persons. The assurances were periodically repeated but when, more than a year later, no minority persons had yet been hired the commission, after a hearing, issued a remedial order. The order specified (p. 266, 161 Cal.Rptr. 475, 605 P.2d 1) that new employments of the department " 'shall be made on the basis of an alternating ratio of 2:1 so that at least one minority person is appointed for every two nonminority persons' and that '(s)aid ratio shall be applied only until the percentage of minorities' " was raised from 1.54 percent to 8 percent. (The county had a 19.5 percent minority population.) Instead of complying, the department head successfully sought a judicial declaration that the county's order was unconstitutional and void.

On appeal the state's Supreme Court disagreed, holding (p. 269, 161 Cal.Rptr. 475, 605 P.2d 1) that the county's rule and order "directed specifically at ameliorating minority underrepresentation which is found to have resulted from the county's own discriminatory employment practices" was constitutionally and statutorily valid.

Dothard v. Rawlinson (1977) 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786.

Dianne Rawlinson was a 22-year-old college graduate who had majored in correctional psychology. Her application for employment as a correctional counselor (i. e., prison guard) in Alabama was rejected because she failed to meet the state's correctional counselor employment criteria. At issue in the high court were the minimum weight and height requirements of 120 pounds and 5 feet 2 inches, and a regulation barring employment of women in "contact" positions of male maximum-security prisons.

A divided high court upheld the district court's determination that the height and weight requirements operated as such a "barrier to equal employment opportunity that Title VII (of the Civil Rights Act of 1964) forbids." The criteria were found to have no reasonable "job relation" against the state's insistence that they insured the necessary "strength"; at least two of the justices had concluded that prison guards "rely primarily on the moral authority of their office ...." On the other hand, another division of the court held the discriminatory regulation against female guards in male maximum-security prisons to be constitutionally and statutorily acceptable as a " 'bona fide occupational qualification ....' "

Firefighters Institute v. City of St. Louis, Mo. (8th Cir. 1978) 588 F.2d 235 (cert. den. sub nom. Banta v. Firefighters Institute (1979) 443 U.S. 904, 99 S.Ct. 3096, 61 L.Ed.2d 872).

Here, as in the case at bench, black fire fighters and others claimed racial discrimination against blacks in the hiring, and promotion, of personnel of a city's fire department. A remedial action for its correction was commenced under title VII of the Civil Rights Act of 1964. The district court had observed long-existing discriminatory patterns by the city, against blacks, in employment and promotion as fire fighters. Such discrimination had continued even up to the time of the action's trial.

On review the Court of Appeals found that the fire department's tests and examinations for initial employment, and promotion, had a substantial disparate racial effect, which the city had never endeavored to correct. The city's conduct through the preceding years was described as "intransigence" and "unwillingness," a "determination" not to change conditions, "recalcitrance," "continued inaction," and a present-day "continuation of a policy of discrimination" against blacks. Such practices were emphasized by the city's permissive and continued maintenance of "racially segregated eating arrangements" in its firehouses.

The court concluded: "We believe that the record in this case ... provides ample discrimination for preferential relief ... in order to redress the rights of those who have been the victims of the City's discrimination." (588...