United States v. Sheriff of Lancaster County

• Decision Date: 06 May 1983
• Docket Number: Civ. A. No. 83-0136-R.
• Citation: 561 F. Supp. 1005
• Parties: UNITED STATES v. SHERIFF OF LANCASTER COUNTY.
• Court: U.S. District Court — Eastern District of Virginia

561 F. Supp. 1005

UNITED STATES v. SHERIFF OF LANCASTER COUNTY.

Civ. A. No. 83-0136-R.

United States District Court, E.D. Virginia, Richmond Division.

April 11, 1983.

Consent Decree May 6, 1983.

William B. Reynolds, and William B. Fenton, Asst. Attys. Gen., Melissa Page Marshall, Trial Atty., Dept. of Justice, Civil Rights Div., Washington, D.C., Robert W. Jaspen, Asst. U.S. Atty., Richmond, Va., for plaintiff.

Philip P. Purrington, Jr., Commonwealth Atty., Lancaster County, Lancaster, Va., for defendant.

OPINION

WARRINER, District Judge.

Presently the Court has before it the parties' joint motion for entry of a consent decree. On 7 March 1983, plaintiff United States filed a complaint alleging that defendant Sheriff of Lancaster County unlawfully discriminated on the basis of sex in his employment practices in violation of the 1972 Equal Employment Opportunity Act amendments to Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. On the same day that the complaint was filed, the proposed consent decree was tendered to the Court with an accompanying brief and a supporting affidavit.

In order to correct the present effects of the past alleged discrimination, Paragraph 1 of the consent decree sets forth the following "objective:"

In particular, the Sheriff of Lancaster County adopts, and shall seek in good faith to achieve, the objective of employing women in the rank of Field Deputy in the LCSD in numbers which approximate their respective interest in and ability to qualify for such employment under non-discriminatory selection procedures and criteria.

Paragraph 4 of the consent decree provides that:

The Sheriff of Lancaster County shall immediately adopt and implement an active and continuing recruitment program directed toward increasing substantially the numbers of qualified women applicants for appointment to the rank of Field Deputy in the LCSD in accordance with the purpose and objective of this Decree, as set forth in Paragraph 1.

This language is not clear. But it appears to require that the proportion of women hired to that of men hired correspond to the ratio of interested and qualified women applicants to interested and qualified male applicants. In other words, quota hiring based on applicant flow is contemplated.

Recently, in United States v. Virginia Department of Highways and Transportation, 554 F.Supp. 268 (E.D.Va.1983), this Court refused entry of a somewhat similar proposed consent decree. One reason for the refusal, though not the central reason, was the consent decree's requirement of race and sex discrimination in employment through the imposition of quotas based on race and sex. Id. at 271-72. The consent decree "referred to quotas by using the euphemism `goals'." Id. at 269, n. 2. The consent decree established, district-by-district, specific percentages for recruitment of black persons and women as immediate and long-term goals; the consent decree also specified that the State would "seek to attract qualified black and female applicants ... so that they constitute 10 and 25 percent respectively of the applicant pool ... on a State-wide basis for each year." Then, the consent decree stated that "it is the expectation of the parties that such hiring and promotion in accordance with the recruitment goals above will result in the appointment of blacks and women at levels approximating their representation in the pool of qualified applicants for those positions." Finally, the consent decree stated that the recruitment-cum-hiring goals "are not and will not be treated as quotas. They are, rather, guidelines to assist in the assessment of the State's progress toward achieving a more representative work force."

The Court held that the record in the case afforded the Court no basis upon which the Court could exercise its discretion to enter the consent decree in accordance with the standards adopted by the Fourth Circuit in Carson v. American Brands, Inc., 654 F.2d 300 (4th Cir.1981), and set forth earlier in Carson v. American Brands, Inc., 606 F.2d 420, 430 (4th Cir.1979). Accordingly, and for this reason, the consent decree was refused.

The Court noted, however, that there were additional reasons why the consent decree should be refused. One of these reasons was that the consent decree imposed quotas based on race and sex and that the imposition of such quotas on employment applicants by a State was unconstitutional:

The question is whether the Commonwealth can engage in racial and sexual discrimination in employment practices contrary to the mandate of the Fourteenth Amendment to the United States Constitution.

. . . . .

That the Fourteenth Amendment prohibits race discrimination by a State in any form, manner, guise, or shape, has been so often stated by this Court, by the Fourth Circuit, and by the Supreme Court of the United States that it seems doubtful that any tribunal would give a moment's thought to the idea that a State may make exceptions to the non-discriminatory rule of the Fourteenth Amendment. The Fourteenth Amendment similarly restricts sex discrimination by a State.

United States v. Virginia Department of Highways and Transportation, 554 F.Supp. 268, 271-72 (E.D.Va.1983).

This Court also reiterated its view "that the Equal Protection component of the Fifth Amendment would prohibit a federal court from participating in such discriminatory employment through the device of a consent decree." Id. at 269.

After this Court's refusal of the original consent decree in United States v. Virginia Department of Highways & Transportation, supra, the parties in that case submitted an amended consent decree. The amended consent decree eliminated the strict hiring quotas set forth in the original consent decree. However, the amended consent decree retained specific percentage district-by-district recruitment goals. The State-wide recruitment goals for black and female applicants, though still firmly fixed at 10 and 25 percent respectively, became mere velleities, the achievement of which was relegated to the parties' "hope". The parties' "expectation" that the numbers of blacks and women hired would approximate their representation in the applicant pool remained. However, the parties added emphatic, repetitive, and unequivocal disclaimers that neither the recruitment goals nor the hiring and promotion expectations were quotas and that neither would be treated as quotas under the consent decree for any purpose. Finally, the goal of achieving a "more representative" work force was deleted.

Thus, in United States v. Virginia Department of Highways and Transportation, 554 F.Supp. 268 (E.D.Va.1983), the Court's inquiry became whether the word "expectations," as used in the amended consent decree tendered the Court, constituted "quotas" under another name. In the context of the amended consent decree, read as a whole, the Court concluded that the term expectations as used by the parties did not constitute quotas. The amended consent decree specifically disavowed any attempt to set quotas by any name. Further, and even more persuasively, the brief and affidavit accompanying the amended consent decree emphasized and re-emphasized the philosophical, statutory, and constitutional bars to a judicially imposed quota system (under any name) on an agency of the State.

Under such circumstances, to have voiced suspicion that an expectation was actually a quota in deep camouflage would have been to express suspicion of the veracity of the affiant, the Assistant Attorney General of the United States for Civil Rights. Not entertaining that suspicion, there was no basis upon which the Court could express suspicion that "expectation" was simply the latest in a long search for an acceptable disguise for race and sex quotas, and hence of race and sex discrimination, in employment. The Court entered the amended consent decree.

At the same time, the Court was and has since been unable to resolve in its mind a legal or rational basis for the presence of expectations in a consent decree. In the instant case and in the above cited case the parties failed to set forth the factual or conceptual basis upon which these employment expectations or objectives were arrived at, justified, and determined. If they are not quotas, then why mention them at all? What place do parties' mere expectations have in a legal document such as a consent decree? If expectations are significant enough to be mentioned, then should not the basis or bases for the expectations be made manifest?

The parties said in United States v. Virginia Department of Highways & Transportation, supra, that they expect the percentages of hiring of various applicants will be approximately equal with respect to sex and race as those percentages vary among the applicants. This expectation necessarily presupposes that the only significant difference between the applicants for purposes of employment, on average, will be their sex and their race.

We are all aware of the unfortunate differences that exist between races in such categories as percentages not attending high school,¹ percentages completing high school,² percentages behind in high school,³ percentages completing college,⁴ percentages of illiteracy,⁵ scholastic aptitude test scores,⁶ and the myriads of other testing, achievement, and sociological differences which point to the price that has been paid and is still being paid by members of the black race for past social, political, and economic discrimination.⁷

We cannot pretend that these discrepancies do not exist; they do exist; and anyone who reads the newspapers knows they do exist. How then can it be expected, particularly after extensive recruitment for black persons,⁸ that the hiring factor and the applicant flow factor will be approximately equal between the races?⁹

Similarly, there are differences between men and women without regard to race. For instance, no one would seriously deny that on average men...