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On July 2, 1986, a six-member majority of the Supreme Court
held that Title VII of the Civil Rights Act does not prohibit
the inclusion in a consent decree of race-based relief that
may benefit individuals who were not actual victims of a
defendant's discrimination even if a court could not award
the same relief after trial. The decision is especially
significant insofar as the Court expressly rejected the
argument advanced by the Solicitor General in an amicus
curiae brief that Title VII's remedial provisions limit
the relief afforded by a consent decree to individuals
who are the actual victims of an employer's discrimination.
1 The Court's holding, however, is extremely narrow,
and otherwise can be expected to have limited effect on
the Department of Labor's regulations under Executive Order
11246.

In an opinion delivered by Justice Brennan, the majority
upheld a consent decree that embodied a race-conscious
promotion scheme adopted voluntarily by the City of
Cleveland and the Vanguards, an organization of Black
and Hispanic firefighters, in settlement negotiations.

1/ The Court noted that the Equal Employment Opportunity
Commission did not join in the Solicitor General's brief,
and that the brief was "filed only on behalf of the Attorney
General, who has some limited enforcement responsibility
under Title VII, see 42 U.S.C. $2000e-5 (f) (1), and the
Federal Government in its capacity as an employer, $2000e-
16." Slip op. at 15, n.9.

78-481 0 - 87 - 17

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The case arose in 1980, when the Vanguards filed a complaint primarily alleging intentional racial discrimination in the awarding of promotions within Cleveland's Fire Department. through a number of racially discriminatory practices. The Vanguards' complaint followed 8 years of race-discrimination litigation involving the City and employees in its police and fire departments. The previous litigation had resulted, inter alia, in a court order enjoining certain hiring and promotion practices and establishing minority hiring goals for the police department, and a consent decree imposing hiring quotas for firefighters. The Vanguards contended that the remedial effect of the hiring quotas was nullified by the Fire Department's promotion practices. The City, having unsuccessfully defended discrimination charges in the previous litigation, immediately entered into serious settlement negotiations with the Vanguards in the instant case. Local Number 93 of the International Association of Firefighters, a union representing a majority of Cleveland's firefighters, subsequently intervened in the suit, as a party-plaintiff, stating its opposition to any form of race-based affirmative action, and contending that promotions should be based on competence rather than racial quotas.

The consent decree eventually approved by the Court reflected the agreement of the City and the Vanguards, but not of Local 93. The agreement increased the number of supervisory positions available to both minority and nonminority employees, and generally provided that the promotions initially should be shared evenly between minority and nonminority firefighters who passed qualifying examinations, and thereafter should be made in accordance with race-based promotional goals. The agreement was to remain in effect for four years, and required the City to provide progress reports to Local 93. It further provided that the district court would retain exclusive jurisdiction to hear claims made by the parties, including Local 93.

Local

Local 93 objected to the agreement, but the district court
overruled the objections and approved the consent decree
early in 1983, finding an historical pattern of racial
discrimination in the City's promotion practices.
93 appealed, but the United States Court of Appeals for
the Sixth Circuit affirmed, noting that the decree was
of limited duration, and did not require the promotion
of unqualified minority firefighters or the discharge of
nonminority employees, or create an absolute bar to the
advancement of nonminorities. Although the Supreme Court,

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in Firefighters v. Stotts, 467 U.S. 561 (1984), had invalidated an injunction requiring layoffs over the objection of the City while this case was pending, the court of appeals held that Stotts was inapplicable since the instant case involved voluntary action in the form of a consent decree rather than court-ordered relief. Local 93 petitioned for certiorari, contending that Title VII prohibited the consent decree because Section 706 (g) permitted only victimspecific relief.

Section 706 (g) provides that "no order of the court shall require the promotion of an individual as an employee" if the individual was denied advancement "for any reason other than discrimination on account of race

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U.S.C. 2000e-5. Local 93, supported by the government in its amicus brief, argued that a consent decree was an "order of the court" within the meaning of Section 706 (g), and that the Section did not permit the use of racial preferences that could benefit individuals who were not actual victims of an employer's discrimination. The Court rejected both arguments. 3/

At the outset, the Court reiterated its longstanding recognition "that Congress intended for voluntary compliance to be the preferred means of achieving the objectives of Title VII." Slip op. 12 (citations omitted). It reaffirmed its 1979 holding in Steelworkers v. Weber, 443 U.S. 193 (1979), that "the voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who were not actual victims of discrimination." Slip op. 13. Although Weber involved a purely contractual 3/ The Court also rejected the argument of Local 93 and the government that the consent decree was invalid because it was entered without the consent of the intervenor union. It concluded that, while an intervenor is entitled to present evidence and raise objections, it does not have the power to invalidate a consent decree merely by withholding its consent. This does not mean that parties who choose to resolve litigation through settlement may dispose of the claims of a third party intervenor, or impose duties or obligations upon the intervenor without that party's consent. Rather, the intervenor may continue to litigate any claims that were properly raised. In the instant case, however, the union failed to raise any substantive claims for litigation in the district court. Thus, the Court stated that "whether it is now too late to raise such claims, or-if not-whether the union's claims have merit are questions that must be presented in the first instance to the District Court, which has retained jurisdiction to hear such challenges." Slip op. 27.

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private agreement, the majority found no reason "to distinguish between voluntary action taken in a consent decree and voluntary action taken entirely outside the context of litigation." Slip op. 14. In particular, the Court rejected the government's argument that Section 706 (g) "establishes an independent limitation on what courts -as opposed to employers can do, prohibiting relief that may benefit nonvictims," (slip op. 15), and its argument that "a consent decree should be treated as an 'order' ́ within the meaning of $706 (g) because it possesses the legal force and character of a judgment decreed after a trial." Slip op. 15. Examining the legislative history, the Court concluded that consent decrees were not Section 706 (g) "orders" because "the voluntary nature of a consent decree is its most fundamental characteristic." Slip op. 19.

In the view of the majority, there is "no reason to think that voluntary, race-conscious affirmative action such as was held permissible in Weber is rendered impermissible by Title VII simply because it is incorporated into a consent decree." Slip op. 15. "Thus, whatever the extent of the limits $706 (g) places on the power of the federal courts to compel employers and unions to take certain actions that the employers and unions oppose and would not otherwise take, $706 (g) by itself does not restrict the ability of employers or unions to enter into voluntary agreements providing for race-conscious remedial action." Slip op. 18. "Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." Slip op. 23:

The Court made clear that its holding "did not say that the parties may agree to take action that conflicts with or violates the statute upon which the complaint was based." Slip op. 23. As Justice O'Connor noted in her concurrence, the Court's holding therefore does not leave nonminorities without a remedy for perceived reverse-discrimination. Rather, nonminorities may challenge a consent decree under Section 703 of Title VII, 42 U.S.C. $2000e-2, which generally prohibits racial discrimination against "any individual" employed by an employer, or, in cases involving governmental employees, under the Fourteenth Amendment. Slip op. 18, n.11, 23. But "to the extent that a consent decree is not otherwise shown to be unlawful, the court is not barred from entering the decree merely because it might lack authority under $706 (g) to do so after a trial." Slip op. 23.

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Joined by Chief Justice Burger, Justice Rehnquist concluded in his dissent that a consent decree is an "order" subject to the limitations on judicial relief in Section 706 (g), and that Section 706 (g) bars relief to individuals other than the actual victims of their employer's past discrimination. In his separate dissent, Justice White agreed with Justice Rehnquist that Section 706 (g) applied to the consent decree in this case, but disagreed with Justice Rehnquist's conclusion that Section 706 (g) always required victim-specific relief. He concluded that, although victim-specific relief was the general rule under Title VII, district courts could grant relief to nonvictims in cases of particularly egregious discrimination that cannot be cured by injunctive relief alone (Slip op., White, J., concurring, 3). Justice White nevertheless was convinced that "the remedy imposed in this case exceed [ed] the limits of a permissible remedy" (ibid.) because the selection of minorities and nonminorities on a one-to-one basis conclusively displaced the legitimate expectations of innocent nonminority employees. (id. at 5). In Justice White's view, such a remedy "could not have been ordered after a trial, and [was] no more valid when agreed to by the employer but contested by those [nonminority employees) who claim their right not to be discriminated against on racial grounds." (Ibid.).

The Court's holding is narrow and its decision is limited to the particular circumstances in this case. Because of the posture of the case, the Court had no occasion to address the permissibility of the affirmative action plan in the consent decree under Section 703 of Title VII, with regard to the rights of the affected nonminority employees, or "the circumstances, if any, in which voluntary action by a public employer that is permissible under $703 would nonetheless be barred by the Fourteenth Amendment." Slip op. 14, n.8. Rather the Court left questions regarding the application of the Fourteenth Amendment to further proceedings in the district court. Ibid. The Court, moreover, did not decide "what limits $703 places on an employer's ability to agree to race-conscious relief in a voluntary settlement that is not embodied in a consent decree, or what showing the employer would be required to make concerning possible prior discrimination on its part against minorities in order to defeat a challenge by nonminority employees

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