Hiatt v. City of Berkeley

Opinion

Plaintiffs, employees of the Berkeley Fire Department (hereafter respondents), brought this action against the City of Berkeley, its City Council, and certain city officials (hereafter collectively appellants), challenging the promotional procedures laid down in the city’s Affirmative Action Program (hereafter AAP). Respondents invoked the Fourteenth Amendment of the United States Constitution, article I, section 21 (now § 7) of the California Constitution, 42 United States Code, sections 1983, 2000d, 2000e-2 (Civil Rights Act of 1964), and California Labor Code section 1420 et seq., claiming that the attacked provisions of AAP set up rigid quotas in hiring and promoting city employees which were based solely on race or sex and therefore violated both the constitutional principles of equal protection of laws and the provisions of the Civil Rights Act of 1964 proscribing discrimination premised on race, color, national origin or sex. After trial, a judgment and permanent injunction were issued in favor of respondents. The appeal is taken from the judgment awarding damages to respondents and enjoining City of Berkeley from enforcement of certain provisions of AAP; the cross-appeal is from a denial of attorney’s fees and a refusal to promote two of the respondents.

We filed an opinion in which (as modified), we concluded that the judgment should be reversed in three specified respects but should

In order to test the validity of a classification, the courts apply a two-tiered system of analysis. Thus, it has been said that, in general, classifications made by government regulations are valid “if any state of facts reasonably may be conceived” in their justification (McGowan v. Maryland (1961) 366 U.S. 420 , 426 [ 6 L.Ed.2d 393 , 399, 81 S.Ct. 1101 ]). This yardstick, generally called the “reasonable basis” test, is used in a variety of contexts to determine the validity of the government action (Village of Belle Terre v. Boraas (1974) 416 U.S. 1 , 8 [ 39 L. Ed.2d 797 , 803-804, 94 S.Ct. 1536 ]; Dandridge v. Williams (1970) 397 U.S. 471 , 485 [ 25 L.Ed.2d 491 , 501-502, 90 S.Ct. 1153 ]). However, in certain circumstances a more stringent standard is imposed. Most notably, where the classification is based solely on the basis of race or sex, it is regarded as a suspect classification which is subject to strict judicial scrutiny (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288 [ 101 Cal.Rptr. 896 , 496 P.2d 1264 , 53 A.L.R.3d 1149 ]; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1 [ 95 Cal.Rptr. 329 , 485 P.2d 529 , 46 A.L.R.3d 351 ]; People v. Rappard (1972) 28 Cal.App.3d 302 [ 104 Cal.Rptr. 535 ]). This principle has recently been reaffirmed in University of California Regents v. Bakke (1978) 438 U.S. 265 [ 57 L.Ed.2d 750 , 98 S.Ct. 2733 ], a reverse discrimination case, where the United States Supreme Court emphatically pointed out that distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality (Loving v. Virginia (1967) 388 U.S. 1 , 11 [ 18 L.Ed.2d 1010 , 1017, 87 S.Ct. 1817 ]; Hirabayashi v. United States (1943) 320 U.S. 81 , 100 [ 87 L.Ed. 1774 , 1785-1786, 63 S.Ct. 1375 ]), and held that “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination” (University of California Regents v. Bakke, supra, at p. 291 [57 L.Ed.2d at p. 771]). It follows that in the event the government classifies citizens with

In the case at bench, the record clearly supports the trial court’s finding that the classifications in AAP were based solely on the basis of race and sex. As a consequent, they are subject to strict judicial scrutiny. Accordingly, appellants were required to prove that the racial classifications contained in AAP were warranted by a compelling governmental interest, that the measures taken were necessary to implement the latter interest, and that the means to achieve the stated policy goal were so designed as to impose the least limitation on the rights of the affected majority. The trial court concluded that the pivotal provisions of AAP were in conflict with the equal protection guarantees of both federal and California Constitutions. The record supports the trial court’s conclusion.

1. Compelling State Interest

To begin with, the record is notable for a complete lack of showing that the ultimate goal of AAP, namely, the attainment of proportional racial employment in the city work force in general and the work force of the fire department in particular, was compelled by, or was even reasonably related to, any legitimate legislative end, directly promotive of governmental efficiency, e.g., the enhancement of the employee’s ability to perform his or her duty in a productive manner; or a greater efficiency of the work force as a whole by virtue of its racial restructuring; or establishment of a better rapport with minority persons in the community. Indeed, it stretches any imagination to assume or imply that a firefighter is better suited to his job just because he or she belongs to a certain race or sex or that a minority citizen would prefer a minority fireman to put out a fire at his or her house or that a minority employee of the fire department would, of necessity, establish better rapport with

In response to the objections of opponents, Senator Clark filed a series of responses to these objections, among them the following: “Objection: The bill would require employers to establish quotas for nonwhites in proportion to the percentage of nonwhites in the labor market area. [¶] Answer: Quotas are themselves discriminatory.” (EEOC, Legislative History, supra, p. 3015.)

A series of amendments, the so-called Dirksen-Mansfield substitute (which was ultimately adopted by both houses of the Congress), was then framed by supporters of the bill. In order to allay fears of racial preference hiring, the present text of section 703, subdivision (j), was added to the bill. One of its draftsmen, Senator Humphrey, explained its purpose: “A new subsection 703(j) is added to deal with the problem of racial balance among employees. The proponents of this bill have carefully stated on numerous occasions that title VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group. Since doubts have persisted, subsection (J) is added to state this point expressly.” (Remarks of Senator Humphrey, 110 Cong. Rec. 12723 (June 4, 1964); EEOC Legislative History, supra, p. 3005; italics added.)

In addition, the legislative history clearly reflects that title VII was intended to “cover white men and white women and all Americans” (Remarks of Rep. Celler, 110 Cong. Rec. 2578 (1964)), and to create an “obligation not to discriminate against whites.” (Id., at p. 7218 memorandum of Senator Clark. See also memorandum of Senators Clark and Case, id., at p. 7213, and remarks of Senator Williams, id., at p. 8912.)

United States Supreme Court cases preceding Bakke also gave the interpretation that title VII prohibits racial discrimination against any race, including whites. Thus, in McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273 [ 49 L.Ed.2d 493 , 96 S.Ct. 2574 ], the court concluded that white employees were entitled to relief when the employer dismissed them for misbehavior, but retained a similarly situated black employee. Speaking for a unanimous court, Justice Marshall emphasized that title VII is not limited to discrimination against members of any particular race, and that it prohibits discriminatory preferences for any racial group, minority or majority. In relying on the legislative history and the EEOC interpretation of title VII, the Supreme Court held that “Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.” (Pp. 279-280 [49 L.Ed.2d at pp. 500-501].) In Trans World Airlines, Inc. v. Hardison (1977) 432 U.S. 63 [ 53 L.Ed.2d 113 , 97 S.Ct. 2264 ], the Supreme Court again reaffirmed its earlier statement that the purpose of title VII was to insure that similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex or national origin, and concluded that “The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. This is true regardless of whether the discrimination is directed against majorities or minorities.” (Pp. 71-72 [53 L. Ed.2d at p. 123]; see also to the same effect Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36 [ 39 L.Ed.2d 147 , 94 S.Ct. 1011 ].)

We note in passing that Griggs v. Duke Power Co., supra, 401 U.S. 424 , supports rather than negates or contradicts the principles enunci

3. Impact

Further, the quota system employed in AAP purported to exclude from new hirings and promotional positions not only a certain number of the majority race, but the white class as a whole, at least until the projected minority quotas were filled in the work force of the city. Needless to say, the rigid quota system thus conjured cannot be regarded as a means imposing a lesser or the least limitation possible upon the group disadvantaged by the classification, as envisaged by the case law (Dunn v. Blumstein, supra, 405 U.S. 330 , 342-343 [ 31 L.Ed. 2d 274 , 284-285]; Loving v. Virginia, supra, 388 U.S. 1 , 11 [ 18 L.Ed. 2d 1010 , 1017]; McLaughlin v. Florida, supra, 379 U.S. 184 , 192-193 [ 13 L.Ed.2d 222 , 228-229]; Price v. Civil Service Com., supra, 26 Cal.3d 257 , 282; University of California Regents v. Bakke, supra, 438 U.S. 265 , 308 [ 57 L.Ed.2d 771 , 782]). AAP signally lacks features which have been deemed significant to a finding of validity in the analysis of other affirmative-action plans: Limited duration (cf. Price v. Civil Service Com., supra, p. 261), continuing oversight (cf. University of California Regents v. Bakke, supra, p. 308 [57 L.Ed.2d at p. 782]), synthesis of factors such as race and sex with several other factors, all of which are to be considered in arriving at the classification (cf. DeRonde v. Regents of University of California, supra, 28 Cal.3d 875 , 884), and use of flexible ratios rather than fixed quotas (cf. Price v. Civil Service Com., supra, 26 Cal. 3d at pp. 266, 282), among others.

In elaborating on the reasons why “benign” discrimination may not be accepted, the majority of the Supreme Court advanced three major considerations: “First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of particular groups in order to advance the group’s general interest. See United Jewish Organizations v. Carey, 430 U.S. at 172-173 (Brennan, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U.S. 312 , 343 (1974) (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making.” (Bakke, supra, 438 U.S. at p. 298 [57 L.Ed.2d at p. 776].)

Finally, we find it of singular importance that in rejecting the notion of “benign” discrimination the majority of the Supreme Court cited with approval Professor Bickel’s comment on the self-contradictory nature of reverse discrimination: “‘The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is il

In light of the overwhelming weight of the cited authorities, appellants’ remaining contentions do not call for a lengthy discussion. The argument, that even if section 703, subdivision (j), of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(j)) does not require the employer to redress the racial imbalance, an affirmative action to do the same is permissiblé if done on a voluntary basis (Lindsay v. City of Seattle, supra, 86 Wn.2d 698 [ 548 P.2d 320 ]), may be briefly disposed-of. The principle of unlawful reverse discrimination would apply whether the racial preference was compelled by the court or voluntarily initiated by the employer, because to the victim of the racial discrimination the result is not noticeably different in either case. Moreover, as mentioned before, the legislative history of title VII makes it eminently clear that the elimination of racial imbalance at the expense of eligible majority employees is not only not required, but indeed not permitted because to do so would force the employer to hire or fire employees on the basis of race. With respect to those cases upholding voluntary affirmative action programs for the purpose of redressing racial imbalance, suffice to say that the recent United States Supreme Court cases (McDonald v. Santa Fe Trail Transp. Co., supra, 427 U.S. 273 ; Trans World Airlines, Inc. v. Hardison, supra, 432 U.S. 63 ; Alexander v. Gardner-Denver Co., supra, 415 U.S. 36 ; and especially Regents of University of California v. Bakke, supra, 438 U.S. 265 ) sharply undercut, if not outrightly override them. In light of this new development of law, the continued validity and precedential value of the earlier cases are highly questionable, to say the least.

Appellants’ additional claim that in the case at bench no racial discrimination took place, because the grouping of all eligible employees into three qualifying categories and listing of the candidates in alphabetical order, cannot stand in the light of the hiring priority provision of the AAP, already held illegal, which was an integral part of this process. However, no rule of law requires that appellants afford determinative weight to the quantitative factors of test scores or grades where the

Lastly, in answering appellants’ remaining contention that the appointments in dispute were no more than mere exercise of the city manager’s discretionary power accorded by the charter (city charter, art. VII, § 28), we briefly note that the discretionary power of the city manager is to be exercised within the framework of AAP which, as discussed at length before, is violative of the equal protection clauses of the federal and California Constitutions.

The Cross-appeal

The cross-appeal is taken from that portion of the judgment which refuses to promote two respondents, Messrs. Rinne and Jones, to the position of fire captain and fire lieutenant, respectively, and from the denial of attorney’s fees to respondents.

The factual background giving rise to the respondents’ cross-appeal reveal that the case at bench was tried on a bifurcated basis. The first phase addressed the constitutionality of AAP and called for enjoining appellants from the enforcement of the constitutionally infirm provisions of AAP. After the trial court filed its intended memorandum decision on February 13, 1975, holding that AAP was unconstitutional and illegal upon its face and enjoining appellants from proceeding under the illegal AAP, the liability portion of the case went on trial on March 17, 1975. At the conclusion of the second phase, the lower court found that respondents Hiatt, Salter and Parks, who had been in the meanwhile promoted, were entitled to damages by reason of delay in their promotion. As far as respondents Rinne and Jones were concerned, the trial court concluded that they had no just claim to promotion, due to the fact that there had been no additional vacancies in the fire department, and as a consequence the city manager could not exercise his discretion. Relying on Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240 [ 44 L.Ed.2d 141 , 95 S.Ct. 1612 ], the trial court at the same time denied respondents’ motion for awarding them attorney’s fees. Respondents now argue that the ruling of the trial court was erroneous in both respects.