U.S. v. Com. of Va.

Decision Date17 April 1980
Docket NumberNos. 78-1764,78-1765 and 78-1840,s. 78-1764
Citation620 F.2d 1018
Parties22 Fair Empl.Prac.Cas. 942, 22 Empl. Prac. Dec. P 30,854 UNITED STATES of America, Appellant, v. COMMONWEALTH OF VIRGINIA, Colonel Denny M. Slane, Appellees. UNITED STATES of America, Appellee, v. COMMONWEALTH OF VIRGINIA, Colonel Denny M. Slane, Appellants. UNITED STATES of America, Appellant, v. COMMONWEALTH OF VIRGINIA, Colonel Denny M. Slane, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Vincent F. O'Rourke, Jr., Dept. of Justice, Washington, D. C. (Brian K. Landsberg, Walter W. Barnett, Irving Goldstein, Dept. of Justice; Drew S. Days, III, Asst. Atty. Gen., Washington, D. C., William B Cummings, U. S. Atty., Alexandria, Va., on brief), for the U. S.

James E. Moore and Leonard L. Hopkins, Jr., Asst. Attys. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Va., Richmond, Va., on brief), for Com. of Va. and Colonel Denny M. Slane.

Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and FIELD, Senior Circuit Judge.

FIELD, Senior Circuit Judge:

This case involves the application of Title VII of the Civil Rights Act of 1964, as amended, 1 and the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1978, as amended, 2 in a suit instituted by the United States against the Commonwealth of Virginia and the Superintendent of the Virginia State Police. The United States charges that the Commonwealth engaged in a "pattern and practice" of discrimination against black applicants for civilian positions with the state police and against both black and women applicants for trooper positions.

The basic employment requirements for state troopers in Virginia prior to March, 1976, included, inter alia, that an applicant (1) be between 21 and 29 years of age; (2) be at least 5'9 and weigh at least 156 pounds; (3) be a graduate of an accredited high school (or the equivalent); (4) be a licensed driver with a good record; (5) undergo a thorough background investigation; and (6) pass three written mental ability tests. Applicants for civilian dispatcher positions also had to complete the written examinations. The requirements for other civilian positions varied, but all applicants were subject to a background investigation. Final employment decisions for all positions were made by the Superintendent of State Police.

The United States conducted a three-year investigation of these hiring practices which led to the filing of this suit in the Eastern District of Virginia. The investigation revealed that the Commonwealth hired no black troopers from its inception until 1969, and that from 1972 until 1976 only 3.3 percent of the new troopers employed were black. No black applicants were selected for any of the eighty-five dispatcher positions until 1977, and the blacks employed in the remaining civilian jobs were relegated to lower paying and less desirable positions. Women were also found to be under represented in the force with only three women applicants for trooper positions offered employment by the time of trial.

Upon pretrial motion by the Commonwealth, the district court dismissed the Title VII claims since this suit was instituted by the Attorney General rather than by the Equal Employment Opportunity Commission (EEOC) as required by federal statute. The case came to trial based solely on alleged violations of the Crime Control Act. The court found for the United States on allegations that the Commonwealth discriminated against women applicants for trooper positions 3 and against blacks for civilian dispatcher positions. 4 The court further found that prior to July 1, 1973, the Commonwealth discriminated against blacks for all other positions, but since the anti-discrimination provisions of the Crime Control Act did not take effect until that date, the district court ruled for the Commonwealth on the remaining charges. 5 The district court declined to apply the EEOC guidelines 6 applicable to the possible discriminatory nature of the written examinations. The court also rejected certain statistical evidence offered by the United States, and perceived no reason to impose mandatory quotas to remedy past discrimination.

Upon appeal, the United States challenges the district court's dismissal of the Title VII claims, its rejection of the statistical evidence and the failure to apply appropriate EEOC guidelines. The Government also appeals from the district court's refusal to impose quotas. The Commonwealth cross-appeals from the liability and remedial conclusions of the district court, including its ruling that the United States was not required to prove intentional discrimination to establish a prima facie case.

Dismissal of the Title VII Claims

By pretrial order filed April 8, 1977, the district court dismissed the Title VII claim, relying upon 42 U.S.C. § 2000e-6(c) 7 to hold that the Attorney General was without authority to maintain a Title VII action since this power had been transferred to the EEOC. Subsequent to this dismissal order of the district court, however, on February 23, 1978, the President submitted to Congress "Reorganization Plan No. 1 of 1978," under which full and complete authority to initiate Title VII actions was transferred to the Attorney General. The Plan was approved by Congress and was made effective as of July 1, 1978. In United States v. North Carolina, 587 F.2d 625 (4 Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979), we concluded that Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), required that we recognize and apply the law with respect to this transfer of authority in a case which was pending on appeal on the effective date of the Plan. Accordingly, we must remand this case to the district court for further consideration in the light of Title VII.

Title VII Standards Applicable to State Governments

Although the district court improperly dismissed the Title VII claim, it correctly employed Title VII standards in interpreting the anti-discrimination provisions of the Crime Control Act. H.R.Rep.No.94-1723, 94th Cong., 2d Sess., reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 5374, 5418. The court held that under Title VII standards, the United States was not required to prove intentional discrimination to establish a prima facie case, but only that the employment practices of the defendants had an "adverse impact" on both black and women applicants for employment. This was based on Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), in which the Court determined that a prima facie case could be demonstrated by establishing that an employment practice had an "adverse impact" on black employees whether intended or not. If the plaintiff successfully proves that an employment practice has an "adverse impact," on minority applicants, the employer then has the "burden of showing that any given requirement * * * (has a) relationship to the employment in question." 401 U.S. at 432, 91 S.Ct. at 854. The Commonwealth contends that the "adverse impact" test applies only to private employers and that this is an improper test when Title VII standards are applied to state government employers. Relying upon Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the defendants argue that intentional discrimination must be proven to establish a prima facie case against a state. Davis involved a suit which challenged employment practices of the police force of the District of Columbia, alleging racial discrimination in violation of the Due Process Clause of the Fifth Amendment. The written tests used by the police force eliminated a large portion of the black applicants for police positions. The Court held that the discriminatory impact of a policy alone was not enough to demonstrate a prima facie case under the Fifth Amendment, but that intentional discrimination must be shown. The Commonwealth contends that such a showing of intentional discrimination is required in the present case. Davis, however, does not support the Commonwealth's argument since the Court made it clear that in Davis its consideration was confined to Fifth Amendment principles and indicated that, unlike the Amendment, Title VII does not require proof of intentional discrimination.

Unquestionably, Congress was mindful of the Griggs "adverse impact" standard applicable to private employers when it amended Title VII in 1972 to include state and local governments as employers under the Act; and the legislative history clearly indicates that the standards to be applied to the Commonwealth under the 1972 amendments are the same Title VII standards which were earlier made applicable to private employers. Dothard v. Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 2728, 53 L.Ed.2d 786 (1977); see H.R.Rep.No.92-238, reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 2137, 2152.

Although the Supreme Court has not directly addressed the application of the adverse impact standard to state governments, the Court has determined that Congress had authority under § 5 of the Fourteenth Amendment to "extend (Title VII) coverage to the states as employers." Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n. 9, 96 S.Ct. 2666, 2670 n. 9, 49 L.Ed.2d 614 (1976). Section 5 grants Congress the power to "enforce (the equal protection clause of the Fourteenth Amendment) by appropriate legislation." U.S.Const. amend. XIV, § 5. The only question is whether the "adverse impact" standard mandated by Congress in the 1972 amendments to Title VII and applied by the district court below is appropriate legislation under § 5 of the Fourteenth Amendment.

In Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), the Court stated that Congress was authorized to pass legislation, consistent with the Constitution, which was plainly adapted to the enforcement of the...

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