Lutheran Church-Missouri Synod v. F.C.C.

Citation154 F.3d 494
Decision Date15 September 1998
Docket NumberCHURCH-MISSOURI,No. 97-1116,97-1116
Parties74 Empl. Prac. Dec. P 45,484, 332 U.S.App.D.C. 172 LUTHERANSYNOD, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Missouri State Conference of Branches of the NAACP, et al., Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.

A statement by Chief Judge HARRY T. EDWARDS, with whom WALD, Circuit Judge, concurs, dissenting from the denial of the suggestions of rehearing en banc is attached.

A statement filed by Circuit Judge TATEL, with whom WALD, Circuit Judge, concurs, dissenting from the denial of the suggestions of rehearing en banc is also attached.

Circuit Judge ROGERS would grant the suggestions of rehearing en banc.

Circuit Judge GARLAND did not participate in this matter.

ON SUGGESTIONS OF REHEARING EN BANC

ORDER

PER CURIAM.

Respondent's and Intervenor's Suggestions of Rehearing En Banc and the response thereto have been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestions. Upon consideration of the foregoing, it is

ORDERED that the suggestions be denied.

HARRY T. EDWARDS, Chief Judge, dissenting from the denial of rehearing en banc:

By subjecting an agency's nonpreferential antidiscrimination policies to scrutiny appropriate only for racial classifications, the panel in this case has created a constitutional issue where none exists.

At issue are equal employment opportunity regulations promulgated by the Federal Communications Commission ("Commission" or "FCC"). The regulations prohibit discrimination in employment. See 47 C.F.R. § 73.2080(a) (1997). The regulations also require broadcast stations to maintain "a positive continuing program of specific practices designed to ensure equal opportunity in every aspect of station employment policy and practice." 47 C.F.R. § 73.2080(b). In particular, broadcasters are required to make sure that managers, employees, and prospective employees are fully apprised of the equal employment opportunity policy; in addition, broadcasters are required to "conduct continuing review of job structure and employment practices" to ensure equal employment opportunity. Id. Finally, under "EEO program requirements," broadcasters are instructed that, "to the extent possible, and to the extent that they are appropriate in terms of the station's size, location, etc.," a broadcaster should consider the following actions to facilitate equal employment opportunity:

....

(1) Disseminate its equal opportunity program to job applicants and employees. For example, this requirement may be met by:

(i) Posting notices in the station's office and other places of employment, informing employees, and applicants for employment, of their equal employment opportunity rights. Where it is appropriate, such equal employment opportunity notices should be posted in languages other than English;

(ii) Placing a notice in bold type on the employment application informing prospective employees that discrimination because of race, color, religion, national origin, or sex is prohibited;

(iii) Seeking the cooperation of labor unions, if represented at the station, in the implementation of its EEO program and the inclusion of nondiscrimination provisions in union contracts;

(iv) Utilizing media for recruitment purposes in a manner that will contain no indication, either explicit or implicit, of a preference for one sex over another and that can be reasonably expected to reach minorities and women.

(2) Use minority organizations, organizations for women, media, educational institutions, and other potential sources of minority and female applicants, to supply referrals whenever job vacancies are available in its operation. For example, this requirement may be met by:

(i) Placing employment advertisements in media that have significant circulations among minorities residing and/or working in the recruiting area;

(ii) Recruiting through schools and colleges, including those located in the station's local area, with significant minority-group enrollments;

(iii) Contacting, both orally and in writing, minority and human relations organizations, leaders, and spokesmen and spokeswomen to encourage referral of qualified minority or female applicants (iv) Encouraging current employees to refer minority or female applicants;

(v) Making known to recruitment sources in the employer's immediate area that qualified minority members and females are being sought for consideration whenever you hire and that all candidates will be considered on a nondiscriminatory basis.

(3) Evaluate its employment profile and job turnover against the availability of minorities and women in its recruitment area. For example, this requirement may be met by:

(i) Comparing the composition of the relevant labor area with composition of the station's workforce;

(ii) Where there is underrepresentation of either minorities and/or women, examining the company's personnel policies and practices to assure that they do not inadvertently screen out any group and take appropriate action where necessary. Data on representation of minorities and women in the available labor force are generally available on a metropolitan statistical area (MSA) or county basis.

(4) Undertake to offer promotions of qualified minorities and women in a nondiscriminatory fashion to positions of greater responsibility. For example, this requirement may be met by:

(i) Instructing those who make decisions on placement and promotion that qualified minority employees and females are to be considered without discrimination, and that job areas in which there is little or no minority or female representation should be reviewed;

(ii) Giving qualified minority and female employees equal opportunity for positions which lead to higher positions. Inquiring as to the interest and skills of all lower paid employees with respect to any of the higher paid positions.

(5) Analyze its efforts to recruit, hire, and promote minorities and women and address any difficulties encountered in implementing its equal employment opportunity program. For example, this requirement may be met by:

(i) Avoiding use of selection techniques or tests that have the effect of discriminating against qualified minority groups or females;

(ii) Reviewing seniority practices to ensure that such practices are nondiscriminatory;

(iii) Examining rates of pay and fringe benefits for employees having the same duties, and eliminating any inequities based upon race or sex discrimination.

47 C.F.R. § 73.2080(c).

The Commission also utilizes internal guidelines for processing license renewal applications. Under these guidelines, when deciding how closely to examine compliance with equal opportunity regulations by a station employing between five and fifty full-time employees, the Commission will consider the ratio of minority and women employees to the available workforce as one of several factors. See Amendment of Part 73, 2 F.C.C.R. 3967, p 45 (1987); EEO Processing Guidelines for Broadcast Renewal Applicants, 46 RR 2d 1693 (1980).

It seems to me that the challenged regulations command virtually nothing, save good faith efforts by broadcasters to ensure against unlawful employment discrimination. This notwithstanding, the panel somehow viewed the FCC regulations as "certainly influenc[ing] ultimate hiring decisions" and "oblig[ing] stations to grant some degree of preference to minorities in hiring." See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351 (D.C.Cir.1998). Accordingly, the panel concluded that the regulations constituted the kind of racial classification that must be subjected to strict scrutiny under Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). See 141 F.3d at 351. This analysis mischaracterizes the regulations, with serious consequences.

The regulations in no way draw any kind of racial classification. They plainly do not "oblige" anyone to exercise any sort of hiring preference. Rather, the regulations merely facilitate the avoidance of unlawful employment discrimination. The regulations "influence" hiring decisions only in the sense that anti-discrimination law generally seeks to influence employers to avoid bias. Therefore, I cannot understand how it can be concluded that the regulations constitute a racial classification. Because there is no racial classification at issue here, there is no real constitutional issue to be decided in this case.

* * *

Because the panel decision purports to decide major issues of constitutional law where none exist, this case "presents questions of 'real significance to the legal process as well as to the litigants,' " Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C.Cir.1987). Thus, in my view, review by the full court is required.

* * *

Under Adarand, the existence of "racial classification" in a federal statute triggers strict scrutiny. See Adarand, 515 U.S. at 227, 115 S.Ct. 2097. It is clear that Adarand, which consistently used the language of "racial classification," see id. at 215, 223, 224, 227, 115 S.Ct. 2097, dealt only with policies that actually classified on the basis of race. A careful look at the regulations here reveals that they do not include any such classification, and that Adarand therefore does not apply to them.

The panel here found that the Commission's regulations constituted a racial classification under Adarand, because, in the panel's view, "[t]he entire scheme is built on the notion that stations should aspire to a workforce that attains, or at least approaches, proportional representation." 141 F.3d at 351-52. In so finding, the panel relied primarily on two pieces of evidence. The first was the...

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