Price v. Civil Service Com.

• Decision Date: 25 January 1980
• Docket Number: S.F. 23836
• Citation: 26 Cal.3d 257,161 Cal.Rptr. 475
• Court: California Supreme Court
• Parties: , 604 P.2d 1365, 21 Fair Empl.Prac.Cas. (BNA) 1512, 22 Empl. Prac. Dec. P 30,589 John M. PRICE, as District Attorney, etc., Plaintiff and Respondent, v. CIVIL SERVICE COMMISSION OF SACRAMENTO COUNTY et al., Defendants and Appellants.

Page 475

161 Cal.Rptr. 475

26 Cal.3d 257, 604 P.2d 1365, 21 Fair Empl.Prac.Cas. (BNA) 1512,

22 Empl. Prac. Dec. P 30,589

John M. PRICE, as District Attorney, etc., Plaintiff and Respondent, v. CIVIL SERVICE COMMISSION OF SACRAMENTO COUNTY et al., Defendants and Appellants.

S.F. 23836.

Supreme Court of California, In Bank.

Jan. 25, 1980.

As Modified on Denial of Rehearing Denied March 20, 1980.

John B. Heinrich, L. B. Elam, County Counsel, and Thomas A. Darling, Deputy County Counsel, Sacramento, for defendants and appellants.

Stephen Kosta, Peter E. Sheehan, Clifford C. Sweet, Alice M. Beasley, John H. Erickson, Oakland, David A. Gerber, Dale L. Gronemeier, Paul L. Hoffman, Los Angeles, Margaret C. Crosby, Alan L. Schlosser, Amatai Schwartz, San Francisco, Fred Okrand, Mark D. Rosenbaum, Terry Smerling, Los Angeles, Thomas A. Seaton, Mark Aaronson, San Francisco, and Nathaniel S. Colley, Sacramento, as amici curiae on behalf of defendants and appellants.

John M. Price, Herb Jackson, Dist. Attys., and Roger M. Miller, Deputy Dist. Atty., for plaintiff and respondent.

Patricia Green, San Francisco, Arnold Forster, Jeffrey Sinensky, New York City, Mark S. Rudy, Allan Yannow, San Francisco, Edwin L. Miller, Jr., Dist. Atty., San Diego, Peter C. Lehman and Paul M. Morley, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

In this case we must determine whether a governmental entity may voluntarily adopt a race-conscious, affirmative action hiring program of limited duration to alleviate an underrepresentation of minority employees which the entity finds is attributable to its own past discriminatory employment practices.

The trial court in this action enjoined the County of Sacramento from implementing such a remedial hiring program, concluding that any measure that attempts to increase the proportion of minority workers through the employment of hiring ratios or goals violates the constitutional rights of nonminorities, even when the program is adopted as a remedy for past discrimination. The District Attorney of Sacramento County, who initiated the present litigation, maintains that such a race-conscious hiring plan is not only unconstitutional, as the trial court held, but in addition violates various provisions of Title VII of the federal Civil Rights Act, the California Fair Employment Practice Act (FEPA) and the Sacramento County Charter.

As we shall explain, in light of the United States Supreme Court's recent decisions in United Steelworkers, etc. v. Weber (1979) 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 and University of California Regents v. Bakke (1978) 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, we have concluded that the trial court judgment must be reversed. The Weber and Bakke decisions teach that neither the pertinent antidiscrimination enactments nor the constitutional equal protection guarantee may properly be interpreted to prohibit a governmental employer from voluntarily implementing a reasonable race-conscious hiring program to remedy the effects of the employer's own past discriminatory employment practices. Such remedial affirmative action measures promote, rather than thwart, the attainment of the ultimate constitutional and legislative objective: a society in which equal employment opportunity is a reality rather than an elusive dream.

1. The facts and proceedings below.

In 1974, the Sacramento County Civil Service Commission (Commission), concerned with the relative paucity of minority individuals in the county's employ, 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.

Testimony and other evidence presented at these hearings revealed that Sacramento County's traditional civil service selection procedures, like similar civil service systems throughout the country, embodied a variety of significant, although apparently inadvertent, discriminatory features. Employment experts explained initially that such civil service systems have traditionally relied heavily either on ostensibly objective written examinations or on avowedly subjective oral examinations (i. e., interviews), both of which have operated to screen out a disproportionate number of minority applicants. Although such examinations were generally employed by governmental employers in the expectation that such procedures would ensure a "merit" selection process, the experts testified that upon analysis the procedures actually utilized could not be so justified. Written civil service examinations very often were severely outdated and bore no relationship to the employment position for which application was being made, and oral examinations were in general neither structured to assure uniformity and fairness in application nor scrutinized to determine that the results of the interview procedure actually correlated with an applicant's ability to perform the job under consideration.

In addition the experts reported that although civil service positions were theoretically open to all applicants, many public employers in the past undertook few, if any, steps to disseminate information of openings to the public at large. As a consequence, applicants were frequently confined to friends or relatives of present employees who had learned of the job opportunities by word of mouth. Groups who were not already represented in the workforce, including most minority groups, were thus effectively, albeit unintentionally, excluded from the hiring process.

In response to the information developed at this series of hearings, the Commission adopted a general regulation, rule 7.10, entitled "minority preference appointment"; ¹ the validity of the regulation lies at the heart of the instant controversy. The initial subdivision of rule 7.10 declares: "The purpose of this rule is to provide a procedure for adjustment of disproportionate representation of minority personnel in the County work force which is a result of discriminatory employment practices."

Under the terms of the rule, if the Commission finds "after a public hearing at which interested persons are afforded an opportunity to be heard and to present evidence" that the underrepresentation of minority personnel in a particular classification was caused by "discriminatory employment practices" ² and that it is feasible to ameliorate such underrepresentation "by requiring that minority persons on an eligible list be appointed on a preferential basis as provided in this rule," the Commission may 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. The rule additionally provides that any such remedial order remains continually subject to modification or rescission, and that "(i) n determining whether to rescind or revise an order, the Commission may consider any relevant information including but not limited to the needs of the service, changed circumstances, problems encountered in implementing the order, and information which was not previously considered by the Commission."

As early as June 1974, the date of the original adoption of rule 7.10, the Commission became aware of, and concerned about, the almost complete absence of minority attorneys in the county district attorney's office. The Commission did not, however, immediately institute proceedings under the new rule but instead postponed any direct action, relying on the district attorney's assurances that he would undertake additional efforts to recruit and hire minority attorneys. In July and December 1974, the district attorney repeated his assurances to the Commission, but when additional minority attorneys had not been hired by the summer of 1975, the Commission commenced a hearing under rule 7.10 to determine whether a remedial order should be issued.

At the conclusion of the hearing, the Commission found that the specific prerequisites to a remedial order under rule 7.10 were established, and that a remedial order should be issued. ³ The Commission noted initially that only 1 of the 65 attorney positions in the district attorney's office was filled by a minority person and thus that the number of minority personnel was "disproportionately low" in relation to the 19.5 percent minority population in Sacramento County generally.

The Commission additionally found that the underrepresentation of minorities resulted from a number of unintentional discriminatory employment practices, including inter alia the use of unvalidated oral examinations and the absence of adequate recruitment efforts. Finally, the Commission found that it would be feasible to adjust the disproportionate representation of minority attorneys in the district attorney's office by implementing the remedial preference authorized by rule 7.10.

In formulating the specifics of the remedial order, the Commission took into account the percentage of available qualified minority attorneys on the county's eligibility list. The Commission's order specified that appointments in the class of Attorney I in the district attorney's office "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 non-minority persons" and that "(s)aid ratio shall be applied only until the percentage of minorities in the classes of Attorney I and Attorney II in the District Attorney's office is 8%."

The Commission's findings indicated that in light of the fact that the current Sacramento County Attorney I eligibility list contained 12.7 percent minority representation, and that minority attorneys comprised 17 percent of the entry level attorneys in state legal offices, the 8 percent figure was quite realistic and feasible. Indeed, in terms of the numbers of lawyers in the...