DocketNumber： No. 77-1856
Judges： Gee, Goldberg, Thornberry
Filed Date： 4/10/1980
Status： Precedential
Modified Date： 11/4/2024
Today we have before us a pair of cases involving the interrelationship of “reverse discrimination,” affirmative action, and the principles governing consent decrees. In this case, along with the companion case of United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980), we are faced with novel and difficult issues concerning consent decrees negotiated between the federal government and representatives of local governments settling suits alleging a “pattern or practice” of employment discrimination. We hold here that the district court acted properly in approving the consent decree presented for his approval, because the consent decree is not unreasonable, unconstitutional, illegal, or against public policy. In so holding, we necessarily reach the question of. the status of affirmative actioh after the Supreme Court’s decision in Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and affirm the post-BaA±e validity - of race- and sex-conscious affirmative action plans in this circuit. The two cases also require us to explore in some detail the roles and responsibilities of the parties to-, the lawsuit, the district judge, and the appellate court in this consent decree contexts
The procedural history of this case involved a large amount of skirmishing over various issues. The history which is germane to this appeal will be set out at some length, although very little of substance occurred. On December 29, 1975, the Attorney General filed a Complaint against the City of Miami, various of its officials, and several organizations of police officers alleging that the defendants were engaged in policies and practices that discriminate against black, Spanish-surnamed, and female individuals with respect to employment opportunities and conditions of employment within the City of Miami, in violation of Title VII of the Civil Rights Act of 1964, the Fourteenth Amendment to the Constitution of the United States, and 42 U.S.C. §§ 1981 and 1983. The Complaint sought preliminary and permanent injunctive relief. Jurisdiction was predicated on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3701 et seq., and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1242.
On December 30, 1975, Defendant City- of Miami filed an answer denying the substantive charges of discrimination. On January 28, 1976, Defendants Fraternal Order of Police (FOP) and Miami Police Benevolent Association (PBA) filed an Answer denying the substantive allegations of the Complaint and raising thirteen affirmative defenses.
On May 28, 1976, the United States and the City of Miami jointly moved for re-entry of the consent decree. A similar motion was filed on November 17, 1976,
After a hearing before the court on December 13, the United States and the City of Miami made several modifications in the proposed decree, responding to the court’s concerns raised at the hearing. After a further hearing on February 8, 1977, at which the court raised other concerns relating to the decree, the court finally re-entered the decree, as modified, on March 31, 1977.
In sum, then, the relevant procedural history on this appeal is that a complaint was filed, defendants answered, and a consent decree was signed between the United States and the City of Miami over the objections of the unions which represent Miami Police Officers. We must decide whether the court properly entered the decree.
I.
We will first address two preliminary contentions of the FOP — that the Attorney General lacked authority to institute this action, and that the court could not have approved the decree without the consent of the FOP.
A. Authority of Attorney General
FOP argues that the Attorney General lacks authority to institute this action under the 1972 amendments to Title VII, 42 U.S.C. § 2000e-6,
Although for some time the ultimate resolution of this issue remained doubtful, see United States v. Board of Education of Garfield Heights, 581 F.2d 791 (6th Cir. 1978); United States v. South Carolina, 445 F.Supp. 1094, 1110-1111 (D.S.C.1977) (three-judge court), aff’d without opinion, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978), Congress has recently spoken plainly
Even if the legislative history is not accepted as conclusive, we perceive no injustice in allowing the Attorney General to sue, and therefore apply the law in effect at present. Our duty is to apply the law as it stands at the time we render our decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary. Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Accord Cort v. Ash, 422 U.S. 66, 77, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).
Moreover, the Attorney General was amply authorized to institute suit by two independent statutory provisions, Section 122 of the State and Local Fiscal Assistance Act of 1972, P.L. 92-512, 86 Stat. 932 (Oct. 20, 1972)
Since the City has stipulated that it is a recipient of federal funds under each of these statutes, the authority of the Attorney General to bring suit under these statutes is unquestionable. Moreover, the stan
B. Necessity of FOP’s Consent
The FOP argues that the trial court should not have approved the consent decree without the approval of the FOP. This argument involves two separate contentions. First, the FOP asserts that it has been deprived of its “day in Court” by the waiver of findings of fact by the signatories to the consent decree.
Both of these arguments are meritless. The FOP misses the crucial point here, to wit, that the consent decree orders no relief against the FOP. Unless the FOP can demonstrate that it has been ordered to take some action by the decree, or ordered not to take some action,
The FOP’s Fed.R.Civ.P. 19 argument fails for the same essential reason: no rights of the FOP are affected by the decree. Even if the FOP was at the outset a “necessary” party under Fed.R.Civ.P. 19,
II.
Next, we must discuss the roles of the trial and appellate courts in approving con
A. Trial Court
In what can be termed “ordinary litigation,” that is, lawsuits brought by one private party against another private party that will not affect the rights of any other persons, settlement of the dispute is solely in the hands of the parties. If the parties can agree to terms, they are free to settle the litigation at any time, and the court need not and should not get involved. As Judge Wyzanski has described this situation: “the traditional view is that the judge merely resolves issues submitted to him by the parties . . . and stands indifferent when the parties, for whatever reason commends itself to them, choose to settle a litigation.” Heddendorf v. Goldfine, 167 F.Supp. 915, 926 (D.Mass.1958).
Moreover, procedurally it would seem to be impossible for the judge to become involved in overseeing a settlement, because the parties are free at any time to agree to a resolution of the dispute by private contractual agreement, and to dismiss the lawsuit by stipulation.
In contrast, there are certain special situations in which the trial court is required by statute or rule to approve a settlement to which the parties to the litigation have agreed. The three most prevalent examples of this are proposed class action settlements, proposed shareholder derivative suit settlements, and proposed compromises of claims in bankruptcy court.
In these three situations, the standard for approval has been stated both positively— that the trial court must find that the settlement is fair, adequate, and reasonable, see, e. g., Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971) (quoting district court judge)— and negatively — that the trial court may only approve a settlement after determining that its terms are not unlawful, unreasonable, or inequitable, see, e. g., United States v. City of Jackson, 519 F.2d 1147, 1151 (5th Cir. 1975).
We have been unable to discern any difference in meaning between these variants on what we perceive to be essentially one standard; nor does the standard vary in application between the three different types of cases. In each of the three situations — bankruptcies, class actions, and shareholder derivative suits — there are special considerations not present in ordinary litigation which make this standard appropriate. In the bankruptcy situation, the “fair and equitable” standard was mandated by a statute, 11 U.S.C.A. §§ 574, 621(2) (West 1970) (repealed, P.L. 95-598, 92 Stat. 2549 (1978)); see TMT Trailer Ferry v. Anderson, 390 U.S. 414, 424, 88 S.Ct. 1157, 1163, 20 L.Ed.2d 1 (1968). In the class action and shareholder derivative suit contexts, the Federal Rules of Civil Procedure require that the court approve the settlement before the action is dismissed or compromised, see Fed.R.Civ.P. 23(e) and 23.1,
Because there have been few situations other than the three special situations in which trial courts have been asked to approve a settlement, and the language in some of the cases involving these special situations has been expressed without limiting its application to the type of lawsuit involved, there may have been reason to believe that whenever a trial court is asked to approve a settlement, he must determine that the settlement is abstractly “adequate,” and that his decision to this effect will be routinely approved by us on review.
As we have noted, however, an active role for the trial court in approving the adequacy of a settlement is the exceptional situation, not the general rule. Even in the situations requiring court scrutiny, it has been said that, even after the court has inquired into the facts and law of'the case, it need not reach any ultimate conclusions concerning how the case would be decided at trial, see Cotton, supra, 559 F.2d at 1330; indeed, trial judges have been told that absent fraud, collusion, or the like they should be hesitant to substitute their judgment for that of experienced counsel, even when those counsel represent private interests. See id. at 1332 nn.2 & 3.
Here, we are faced with a situation somewhat different from that posed by ordinary litigation, for the interests of individuals and organizations other than those approving the settlement may be implicated. . The presence of these other interests prevents us, or the trial court, from taking a totally “hands-off” attitude toward the settlement reached. In fact, if this were merely a suit between private parties in which interests of non-parties were implicated, we might be inclined to endorse a fairly active role for the trial court in determining the fairness of the settlement. However, several factors convince us that the trial court properly took an intermediate stance.
First is the extremely high premium put by Congress on voluntary settlement of Title VII suits. There have been repeated asseverations of this principle. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), the Supreme Court said: “Cooperation and voluntary compliance were selected [by Congress] as the preferred means for achieving [the goal of elimination of unlawful employment discrimination].” This Court has wholeheartedly endorsed that conclusion. See, e. g., Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977); United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 846 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976) (“it cannot be gain-said that conciliation and voluntary settlement are the preferred means for resolving employment discrimination disputes”) (Thornberry, J.); Hutchings v. United States Industries, Inc., 428 F.2d 303, 309 (5th Cir. 1970) (“it is clear that Congress placed great emphasis upon private settlement and the elimination of unfair practices without litigation on the ground that voluntary compliance is preferable to court action” (citation omitted) (Ainsworth, J.), Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970) (“the central theme of Title VII is ‘private settlement’ as an effective end to employment discrimination”) (Tuttle, J.); Dent v. St. Louis-San Francisco Ry. Co., 406 F.2d 399, 402 (5th Cir. 1969) (“the basic philosophy of [Title VII] is that voluntary compliance is preferable to court action and that efforts should be made to resolve these employment rights by conciliation both before and after court action”) (Coleman, J.); Oatis v. Crown Zellerbach
Second is the fact that the plaintiff here is a department of the United States government. Unlike the situations in which we fear that a party may be attempting the profit at the expense of unrepresented individuals, e. g., class actions and shareholder derivative suits, we here have as plaintiff the government department charged with seeing that the laws are enforced. We therefore need not fear that the pecuniary interests of the plaintiff and defendant will tempt them to agree to a settlement unfair to unrepresented persons,
Moreover, a careful calibration by the trial court to ensure that the relief granted goes exactly as far, but no further, than is required by the extent of the past illegal discrimination is impossible.
There are other reasons for a deferential attitude towards agreements reached by
We also note that if the government agency negotiating with the defendants to remedy discrimination had been the Equal Employment Opportunity Commission rather than the Department of Justice, and if a conciliation agreement with exactly the same terms as the proposed consent decree had been reached between the E.E. O.C. and the defendants, the district court’s scrutiny of the terms of the agreement would be minimal. In Equal Employment Opportunity Commission v. Contour Chair Lounge Co., 596 F.2d 809 (8th Cir. 1979), the Eighth Circuit upheld the district court’s determination, 457 F.Supp. 393 (E.D.Mo. 1978), that conciliation agreements between the E.E.O.C. and employers are specifically enforceable. Neither the trial court nor the appellate court conducted a detailed inquiry into the reasonableness of the agreement; rather, each independently satisfied itself that the agreement contained no illegal terms, and specific performance was ordered without further inquiry. We are unaware of any difference between the roles that the Department of Justice and the E.E.O.C. play in enforcing the antidiscrimination provisions of Title VII that requires courts to order specific performance of voluntary settlement agreements with the E.E.O.C. after a minimal inquiry into their legality, but enables a court to freely overrule agreements reached by the Department of Justice merely because the court would have reached a different result.
For these reasons, we hold that in this situation the trial court need only determine that the proposed settlement is not unconstitutional, unlawful, cf. Kelly v. Kosuga, 358 U.S. 516, 520, 79 S.Ct. 429, 431, 3 L.Ed.2d 475 (1959) (court will not enforce contract which violates the law), contrary to public policy, or unreasonable before approval is granted. Moreover, for these same reasons, we believe that the decree proposed in these circumstances should be entitled to a presumption of validity.
This presumption of validity means that a district court judge must have a principled reason for refusing to sign a consent decree in this context. A refusal to sign a consent decree based on generalized notions of unfairness is unacceptable. Rather, the district court judge must state specific reasons why a proposed consent decree unduly burdens one class or another.
If the judge feels unable to make this determination without additional information, he may, in his discretion, hold whatever hearings he deems necessary to garner that information. But, the judge must inform the parties who have proposed the decree of his precise concerns, and lend every possible assistance to reach a reasonable accommodation. Only if it clearly appears that the proposed settlement cannot be modified to meet the standard set out above should he refuse to grant his approval, and then he must clearly articulate for our review his reasons for disapproval.
When the remedy that is jointly proposed by these parties is within reasonable bounds and is not illegal, unconstitutional, or against public policy, the courts should give it a chance to work. The trial court retains the power to modify or vacate the decree if it later appears to have been unwise.
The trial court may only rely on whatever record he has before him when the settlement is proposed; if nothing appears to make him believe the settlement is unreasonable, illegal, unconstitutional, or against public policy, he should grant his approval. If he cannot approve the settlement, he should explain his objections to the parties to give them a chance to meet them. When objections to the settlement are presented, they should be carefully considered. See E.E.O.C. v. American Telephone & Telegraph Co., 556 F.2d 167, 178 (3d Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3145, 57 L.Ed.2d 1161 (1978). However, the burden must be on the objectant to convince the court to disapprove the proposed settlement, and the trial court’s reasoned approval of the settlement will be entitled to much difference. Otherwise, the policy of voluntary compliance with Title VII could be severely thwarted by the interposition of objections to the settlement.
B. Appellate Review
It has often been stated that the standard for appellate review of a trial court’s approval of a proposed settlement is “abuse of discretion.” Usually it is said that the settlement will be reversed on appeal only if it clearly appears that the trial court abused its discretion in approving the settlement. See, e. g., Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979); Cotton, supra; Allegheny-Ludlum, supra, 517 F.2d at 850; City of Detroit v. Grinnel Corp., 495 F.2d 448, 455 (2d Cir. 1974); Young v. Katz, 447 F.2d 431 (5th Cir. 1971). These and similar cases contain no analysis of how the “abuse of discretion” standard on appeal relates to and interacts with the standard for approval at the trial level; rather, the abuse of discretion standard has allowed appellate courts to affirm the trial court’s decision to approve a settlement without requiring the appellate court to undertake a detailed inquiry into the reasonableness of the settlement.
In general, this deference to a trial court’s decision to approve a proposed settlement is appropriate. Settlement of lawsuits by agreement has always been favored.
However, the degree of deference should depend on the degree to which the reasons for deference apply. In the instant case, the trial court was deeply involved in considering the merits of the arguments of both sides. The trial court not only once vacated the decree upon the request of FOP, but also became involved in later modifications before the decree was re-entered. Considerations such as the expertise and experience of counsel for the various parties and the reasonableness of their positions and arguments were undoubtedly present in the mind of the trial judge when he approved the settlement. These factors weigh in our minds as we consider the settlement on review.
However, the abuse of discretion standard cannot be used as a rubber stamp to approve all settlements, especially in cases involving the important issues here involved. We must address the FOP’s substantive challenge to the legality of the terms of the consent. It is to this that we now turn.
III.
The FOP’s major challenge is that the decree impermissibly awards retroactive seniority to blacks, Latins, and women, in violation of § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). Additionally, it asserts that the use of percentage goals for hiring and promotion in the consent decree requires its reversal. Because we feel that the latter issue is of paramount importance, we address it first.
A. Goals and Targets
FOP makes a broad attack on the use of hiring and promotional goals in the consent decree, relying on Title VII and the Fourteenth Amendment to the Constitution. The attack appears to be concentrated on the use of percentage goals or targets per se, although their appropriateness and reasonableness in this particular case are also questioned.
1. Per Se Attack
At this point in the history of the fight against discrimination, it cannot be seriously argued that there is any insurmountable barrier to the use of goals or quotas
No decision of the Supreme Court has ever adopted the proposition that the Constitution must be color blind. See Bakke, supra, 438 U.S. at 336, 98 S.Ct. at 2772 (opinion of Justice Brennan). The Supreme Court has unanimously rejected a statute mandating color blindness on the ground that it would prevent District Courts from fashioning appropriate decrees. See North Carolina Board of Education v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1285, 28 L.Ed.2d 586 (1971). “Race must be considered,” the Supreme Court said. Id. at 46, 91 S.Ct. at 1286. Race-conscious plans have also been approved by the Supreme Court in, for example, United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); United States v. Montgomery County Board of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1971); and Green v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).
Thus, unless the Supreme Court’s decision in Bakke spells the doom of the use of racial and sexual goals by municipal employers,
We frankly admit that we are not entirely sure what to make of the various Bakke opinions. In over one hundred and fifty pages of United States Reports, the Justices have told us mainly that they have agreed to disagree. In addition, we now know that Mr. Bakke must be admitted to the Medical School at the University of California at Davis, but that this does not mean that all affirmative action is doomed. If we wished to delay voluntary efforts by municipal employers to achieve equality of employment opportunity for all persons regardless of race, national origin, or sex, we would have no trouble finding language in the opinion of Mr. Justice Powell supporting the position that, as a constitutional matter, race cannot be used as a factor in a selection process unless constitutional or statutory violations have been proved. See Bakke, supra, 98 S.Ct. at 2755, 2757, 2758 (opinion of Justice Powell). However, this was the view of Justice Powell alone; the four Justices who agreed with his result in the case found it unnecessary to reach the constitutional issue. Moreover, we read his opinion to deny that specific findings of past illegal conduct are constitutionally required before a public employer can base decisions on race.
First, Mr. Justice Powell states explicitly that the decision “does not call into question congressionally authorized administrative actions, such as consent decrees under Title VII.” 98 S.Ct. at 2755 n.41 (emphasis added). Not only is the factual situation in employment discrimination cases materially different from that involved in Bakke, see id. at 2754, but also there has been detailed legislative consideration of the various indicia of previous constitutional or statutory violations, id. at 2755 n.41, particular administrative bodies have been charged with detecting violations and formulating remedies, id., and there is a legislative mandate to remove barriers to equality of employment opportunities. Id. at 2758.
Moreover, the opinion of Justice Powell suggests that the Congressional findings of discrimination in employment accompanying the passage of Title VII are sufficient to justify race-conscious remedies. See Bakke, supra, 98 S.Ct. at 2758 n.44 (opinion of Justice Powell). This conclusion is supported by Mr. Justice Powell’s citation with approval of two cases involving affirmative action remedies imposed under Executive Order 11,246, 3 C.F.R. 339 (1964-1965 Compilation), reprinted following 42 U.S.C.A. § 2000e at 281 (West 1974), without detailed findings of past discrimination. See Bakke, supra, 98 S.Ct. at 2754-55 (opinion of Justice Powell), citing Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Associated General Contractors of Massachusetts, Inc. v. Altschuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974). In neither of these cases were detailed findings of past discrimination by the employer relied on to support the affirmative action plan; rather, the remedies were based on underutilization of minorities by labor organizations and the general findings supporting the Executive Order. In neither case were there findings of specific instances of identified past discrimination.
In the instant case, the Department of Justice made a determination, based on its investigation of the employment practices of the City of Miami, that there was a pattern and practice of discriminatory em
It is clear that, under the views of the other four Justices
Indeed, the requirement of a judicial determination of a constitutional or statutory violation as a predicate for race-conscious remedial actions would be self-defeating. Such a requirement would severely undermine efforts to achieve voluntary compliance with the requirements of law. And, our society and jurisprudence have always stressed the value of voluntary efforts to further the objectives of the law. Judicial intervention is a last resort to achieve cessation of illegal conduct or the remedying of its effects rather than a prerequisite to action.
Bakke, supra, 98 S.Ct. at 2786 (opinion of Justice Brennan).
Moreover, Justice Brennan noted that “the presence or absence of past discrimination is largely irrelevant to resolving respondent’s constitutional claims,” id. at 2787, because the whites and males affected by affirmative action are innocent of past discrimination. Thus, while it may be fair to “punish” an employer or educational institution by interfering with its free selection processes only if it has been guilty of past discrimination, the wrongdoing of the institution is largely unrelated to the expectations of nonminority workers or applicants.
We thus conclude that at least under the views of the five Justices who reached the constitutional issue in Bakke, the consent decree here is constitutional so long as the remedy was reasonable. To that question we now turn.
2. Reasonableness
A stipulation was entered between the United States and the City of Miami concerning the statistical composition of the workforce of the City of Miami on September 2,1976. It was presented to the district court along with the joint motion of the City and the United States seeking re-entry of the consent decree. The FOP has not challenged the stipulated statistics.
The statistics speak just as plainly for female and Spanish-surnamed employees. The labor force in Miami is 46.9% Spanishsurnamed, but this category makes up only about 11% of City employees. For women, the corresponding figures are 44% and 16%. Only 17.4% of Spanish-surnamed males employed by the City and only 7% of the females, earned more than $16,000 per year (compared to 53.4% of the white males).
These statistics present an overwhelming prima facie case of discriminatory employment practices.
Of course, statistics do not tell the whole story. There may well be an explanation other than intentional racial or sexual discrimination for some or all of these statistical disparities. But, as the Supreme Court has recently pointed out, statistics showing racial or ethnic imbalance are “often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily expected that nondiscriminatory hiring practices will in time result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired.” Teamsters, 97 S.Ct. at 1857 n.20.
The hiring and promotional goals established by the decree are substantially related to ending the long-standing pattern of discrimination evidenced by these statistics. The ultimate goal is to obtain percentages of blacks, Spanish-surnamed individuals, and women generally consistent with their percentages in the community. The interim entry level goals appear to be set below those levels,
Moreover, the affirmative relief is temporary. The trial court retains jurisdiction to make other appropriate orders. When the objectives of the decree have been met, it will be dissolved. In the interim, if any provisions of the decree prove to be unduly burdensome to non-minority workers, the court can make whatever adjustments are necessary.
Therefore, because we find the goals established to be substantially related to the legitimate goal of ending the long-standing pattern or practice of discrimination alleged by the United States, because the plan does not require the promotion of unqualified persons, because the plan does not unnecessarily trammel the interests of white male employees or act as an absolute bar to their advancement, and because it is temporary, we can easily find that it is a reasonable effort at a solution to a difficult problem.
B. Retroactive Seniority
FOP also claims that the consent decree impermissibly awards retroactive seniority to blacks, Latins, and women. This assertion widely misses the mark on two counts. First, the consent decree does not award any retroactive seniority at all; it states merely that “[t]he City shall compute the seniority of each member of the affected class based on the total seniority of that person with the City.” This approach to seniority has nothing fictional or retroactive about it, as each employee is given seniority credit for the time he was employed by the City.
Second, FOP’s argument that retroactive seniority is impermissible is based on International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which is at most peripherally relevant to the fact situation here. In Teamsters, the Court held that § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h),
Here, as in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), there can be no argument that the seniority system imposed by the decree in any way deprives other employees of indefeasibly vested rights conferred by the employment contract. See Franks, 96 S.Ct. at 1271. Just as a collective bargaining agreement may, for the purpose of furthering public policy interests beyond what is required by statute, enhance the seniority status of certain employees even though to some extent this will be detrimental to the expectations of other employees, Franks, supra,
Although City of Miami employees may subjectively have expected the City to continue to use the criteria for promotion it had used prior to the consent decree, the FOP has been unable to articulate any doctrine which would demonstrate that this subjective expectation was protected by Florida law. It merely baldly concludes that “the old promotional system gave employees a vested right to expect to be promoted if they qualified under its guidelines . . . .” Reply Brief for Appellant FOP at 6. Given the complete absence of any support for this assertion, we doubt its validity'.
However, we need not stop to conduct a detailed inquiry, since we do not believe analysis along this line would be helpful in determining whether the consent decree is legal under Title VII. It is undoubtedly true that even expectancies characterized as “vested rights” under state law must fall before a court adjudication that Title VII mandates that the expectancies not be fulfilled. See, Franks, supra, 96 S.Ct. at 1268-69; United States v. Hayes International Corp., 456 F.2d 112, 118 (5th Cir. 1972). Thus, even if “vested,” the rights would not be absolute. Because of Title VII’s emphasis on voluntary compliance, see p. 1331, supra, we believe it equally true that such expectancies, even
IV.
In a conventional two-party lawsuit, one party wins and the other loses. Although the resolution of the legal issues may be difficult and have consequences far beyond the parties, no one other than the parties is directly affected by the decree. The situation here is entirely different. Whatever the court does, or does not do, will affect all employees in the workforce of the City of Miami. Some will be benefited; others, hurt. Few would today disagree with the mandate of Congress that something must be done to ensure that discrimination does not prevent minorities and women from receiving their fair share of the economic opportunities available. Reasonable persons, however, have disagreed and will disagree vehemently over how best to accomplish this.
As we see it, the best hope is provided by negotiation and compromise among all affected persons and parties. Where minorities and women have been underrepresented in the past, non-minority males, even those innocent of any wrongdoing, must temporarily bear some of the burden. Understandably, they will be unhappy with this necessity. Conversely, minorities and women may feel that the opportunities foreclosed to them for years are not adequately made up by temporary limited preferences. With these competing interests, the employer’s interest in making its own employment decisions, government agencies’ interests in eradicating discrimination in employment and the effects of past discrimination, and the predictions and predispositions of trial courts concerning these matters all weighed together, it is unlikely that all involved will be completely happy with any result. But this is the nature of compromise. The alternative is to insist that the parties put on a costly and lengthy trial, after which the district court still must face the troubling question of how much of a burden non-minority males must bear so that minorities and women can gain equality of opportunity.
In the resolution of this balance, an agreement between the Justice Department and the concerned municipal governments must be given much weight, within a wide range of reasonableness. Other interested parties, such as the FOP here, should be given every opportunity to demonstrate that the agreement unduly burdens the interests of white employees, and to propose alternatives which are less burdensome. The district court gave the FOP every opportunity, and it was not convinced; we too have considered FOP’s complaints, and neither are we convinced. Therefore, the district court’s approval of the consent decree is AFFIRMED, and the cause is REMANDED to the district court for his exercise of the retained supervisory jurisdiction over compliance with and possible modifications in the decree.
APPENDIX
CONSENT DECREE
The plaintiff United States of America has filed its complaint in this action against the City of Miami alleging that the defendants are engaged in a pattern and practice of discrimination in employment on the basis of race, sex and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act
The Court has jurisdiction over the parties and the subject matter of this action.
The parties have waived hearing and the entry of findings of fact and conclusions of law on all issues covered by this Consent Decree, and have agreed to the entry of this decree which shall not constitute an adjudication or an admission by any of the defendants of any violation of law.
The plaintiff recognizes the adoption by the City Commission of the City of Miami of Resolutions No. 75-636 and 75-958 and Motion No. 75-727 as evidence of good faith efforts by the City of Miami to take affirmative action to increase minority and female participation throughout the City’s work force.
It is therefore ORDERED, ADJUDGED AND DECREED as follows:
1. The defendant City of Miami, its officials, agents, employees, and all persons in active concert or participation with them in the performance of City functions (hereinafter collectively referred to as the City) are permanently enjoined and restrained from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any employee of, or any applicant or potential applicant for employment with, the City of Miami because of such individual’s race, color, sex or national origin. Specifically, the City shall not fail or refuse to hire, promote, upgrade, train or assign any individual, discharge any individual or otherwise discriminate against any individual as an employee or applicant for employment with respect to compensation, terms, conditions or privileges of employment because of race, color, sex or national origin.
In no event shall the City be required to hire unnecessary personnel, to hire, transfer or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a better qualified person, consistent with the provisions of this decree.
2. Recruitment
a. The City shall continue to develop and reassess its present affirmative recruitment program designed to inform blacks, Latins and women of job opportunities with the City, for the purpose of securing sufficient qualified applicants to enable the City to meet the hiring goals set forth herein. The recruitment program shall include maintaining contacts with area high schools, technical and vocational schools, colleges, and organizations which have traditionally expressed an interest in providing minority and female applicants or which indicate such interest in the future, and informing them of employment opportunities for City residents. In addition, where appropriate, advertising of employment opportunities shall be placed in radio stations and other mass media primarily directed to black, Latin and female audiences for the purpose of emphasizing to minorities and women the availability of employment positions. It is understood that the present recruiting area is the city limits of the City of Miami, and such schools, organizations and media utilized shall be consistent with this policy.
In the event it is determined by the City (by its Civil Service Board) that recruiting solely within the City of Miami fails to produce sufficient qualified applicants or is not productive of results as envisioned in this decree, the recruiting area may be enlarged to include Dade County. In the event the recruiting area is enlarged, persons on civil service registers who do not reside in the City of Miami will be considered for employment only after there are no City residents remaining on the register.
b. Police Department. The City shall operate the Law Enforcement Community Outreach and Career Program (the Tri-Cultural Program) as long as federal grant funds continue to be made available for that purpose. The City will continue to make applications for grant funds for the
c. Fire Department. The City shall continue to pursue an active program to recruit blacks, Latins, and women who meet the requirements to become firefighters. Workers in City departments shall be included in the recruiting program.
In such recruiting program the City may continue to cooperate with the International Association of Firefighters Labor Recruitment Program, and Miami Firefighters Association No. 587, if such organizations exhibit a continued willingness to engage in such cooperation.
The City, through the International Association of Firefighters Labor Recruitment Program, shall also provide assistance to applicants to prepare for both written and physical tests and for oral interviews, as well as orientation to. assist applicants in the Fire College training program required for entrance of firefighters upon employment.
The City shall provide sufficient information on test content at least three months in advance of the expected examination date to enable such organizations to develop and implement an adequate training program.
The City understands that this program will supplement the normal selection process, for the period of this Decree. The City shall seek to select 30% of new appointments from among those applicants who participated in the minority recruitment and training program, if sufficient qualified applicants are obtained by this means. This paragraph is to be consistent with those goals established for the fire department in paragraph 5 of this decree.
In the event the International Association of Firefighters recruitment program is discontinued and the Firefighters Association No. 587 is no longer able or willing to cooperate in the recruitment program for the Fire Department, the City shall develop a similar firefighter recruitment program and shall submit it to the plaintiff with the next report required under this decree.
3. Selection Procedures
Except as otherwise provided in this decree, the City shall consider applications for employment from any person who meets the current criteria for any given position, without regard to such person’s race, color, sex or national origin, provided, however, that no standards shall be applied to exclude blacks, Latins and women which are not also applied to disqualify white Anglo males. Specifically:
(a) Testing Requirements
The City shall not use any written examination for employment or promotion which has an adverse impact on blacks, Latins or women unless it can be shown to be predictive of successful job performance, or can otherwise be shown to be job related, in accordance with standards established by the Equal Employment Opportunity Commission in its Guidelines on Employee Selection Procedures, 29 CFR § 1607 et seq., except that:
(1) The City may continue to use such tests during the time they are being validated in accordance with the EEOC Guidelines, and the use of such tests will not be considered a defense against failure to meet the goals set forth in paragraph 5 below.
(2) The City may continue to use skill tests of actual job content (for example typing and filing).
(3) The City shall continue to provide exams in Spanish for positions which do not require proficiency in English.
(4) Nothing in this paragraph shall prevent the administration of tests on a research basis during the term of this decree, provided the results of such tests are not used in any manner in hiring, promotion or transfer decisions or in the evaluation or personnel, and the scores and/or relative performance of the per*1345 sons tested are not made known to any individuals other than those directly involved in the analysis of the test.
(b) Education Requirements
The City shall continue to review job descriptions for the purpose of evaluating the need for a high school diploma or equivalency certificate, or an associate or bachelor’s degree, as a general qualification for employment. The City shall discontinue the use of an education requirement for any position for which such a degree or diploma is unnecessary and where the continued use of such a standard will have the effect of disqualifying blacks, Latins or women at higher rates than white Anglo males. The results of such review shall be submitted to counsel for plaintiff along with the first report required under this decree.
(c) Background Investigation
The background investigation shall not ■include, nor shall any black, Latin or woman be rejected for employment on the basis of, any inquiry which is not routinely made about white Anglo males.
(d) Personal (Pre-Employment) Interview
No personal (pre-employment) interview (including police oral review board) conducted with respect to women, blacks and Latins shall include, nor shall any woman, black or Latin be rejected for employment on the basis of, any inquiry which is not routinely made of white Anglo males.
(e) Medical Examination
The medical or physical examination required of all applicants shall be the same for all applicants, in accordance with job requirements. Whenever an applicant believes s/he has been erroneously disqualified on the basis of the medical or physical examination, s/he shall be given the opportunity to secure an additional diagnosis, at the applicant’s expense, from two independent physicians agreed upon between the City and the applicant. Should the physicians agree that the applicant is qualified according to regularly established physical standards, such evidence of fitness shall entitle the applicant to be considered for employment, in the absence of any other disqualifying factor.
(f) Physiological Qualifications
The physiological qualifications applied to any position shall not include any standards which operate disproportionately to exclude blacks, Latins or women and which have not been shown to be valid or otherwise demonstrably job-related in accordance with standards established by the Equal Employment Opportunity Commission in its Guidelines on Employee Selection Procedures, 29 CFR 1607 et seq. Any test of physical agility required to be completed in order to qualify for appointment to any City position, particularly to entry level positions in the Police and Fire Departments, shall be administered to blacks, Latins and women in the same manner and under the same conditions as such tests are administered to white Anglo males.
(g) Police and Fire Departments
For purposes of the fire department the requirements of state firefighters standards council shall apply. For purposes of the police department, the standards of the Police Standards and Training Commission of Florida shall apply. Should such state standards change or be modified in apparent disagreement with federal law, such changes shall be discussed by the parties.
(i) Criminal Record
Applicants for employment shall not be disqualified solely on the basis of an arrest record.
A record of criminal conviction may be used to reject an applicant for the position of police officer only if the applicant has been convicted of a felony or of a misdemeanor involving “moral turpitude” as the term is defined by law or if the applicant has been released or discharged under any other than honorable conditions from any of the armed forces of the United States.
The above provisions shall not be construed to prevent consideration of an arrest record with respect to the qualifications of an applicant where arrests have resulted in indictments or informations against an individual and where these indictments or informations are for felonies or misdemeanors involving moral turpitude even though there is no actual conviction.
(ii) Polygraph Examination
A polygraph examination (lie detector test) may be administered only to applicants for positions requiring bonding and positions of trust or security. No questions shall be asked of black, Latin or female applicants which are not also regularly asked of white Anglo male applicants, and in no event shall an applicant be asked any questions which are not directly job-related. Under no circumstances shall the polygraph be used as the sole disqualifying factor in the screening of any applicant. The polygraph examination shall be administered to black, Latin and female applicants on the same terms and under the same conditions as those applied to white Anglo male applicants.
(iii) Minimum Age
Any applicant who shall have reached the age of 18 shall be eligible for appointment as a firefighter or a public service aide.
(iv) Police Academy and Fire College
Training for entry level police officers and firefighters shall be administered to blacks, Latins and women on the same terms and under the same conditions as such training is administered to white Anglo males.
4. Assignment
a. The City shall not discriminate on the basis of race, sex or national origin in the assignment of employees in any department, except as may be consistent with standards established by the Equal Employment Opportunity Commission in its Guidelines on Discrimination Because of Sex, 29 CFR 1604 et seq., and its Guidelines on Discrimination Because of National Origin, 29 CFR 1606 et seq.; and by the Office of Revenue Sharing of the U.S. Department of Treasury in Section 51.54 of its Rules and Regulations, 31 CFR Part 51.
b. Sanitation Department
The City agrees to establish lines of progression within the Waste Collection Division of the Sanitation Department as follows:
A list of stand-by laborers will be established who will be offered employment on a daily basis to fill positions held by probationary or permanent waste collectors who are absent on their assigned work day.
As vacancies occur in the waste collectors classification, the department director shall select, with the assistance of the Sanitation Employees Association Committee, a replacement from the established list of stand-by laborers.
The City will train qualified waste collectors in the operator operations of the desired type of equipment utilized by waste collector I. Vacancies in the classification of waste collector operator I shall be filled by the selection of one of such trained personnel by the department director, with the assistance of the Sanitation Employees Association Committee.
The City shall offer training in the operation of the equipment utilized in the next higher classification and repeated throughout the equipment operations series.
The lines of progression following that shown above shall be:
WASTE EQUIPMENT OPERATOR
The City further agrees that the classification of sanitation foreman and sanitation inspector I will be filled from existing permanent employees within the Sanitation Department in accordance with the goals established herein for blacks, Latins and women.
c. Police Department
The City shall evaluate its time in grade and performance evaluation requirements for promotion and for assignment to, positions other than police officer and shall develop time in grade and performance evaluation standards which do not have the effect of selecting white Anglo males at a higher rate than blacks, Latins or women. Such selection process shall be consistent with the goals and timetables set forth in this decree for promotion. A review of this paragraph shall be made at any time upon the election of either party.
5. Goals
In order to eliminate the effects of past discriminatory practices against blacks, Latins and women, the City shall adopt and seek to achieve as its long term goal the participation at all levels throughout its work force of blacks, Latins and women approximating their respective proportions in the City’s labor force, as determined by the United States Bureau of the Census. The purpose of this goal is to eliminate the substantial underrepresentation and uneven distribution of blacks, Latins and women throughout the City’s work force.
(a) Hiring
In order to achieve this long term goal, subject to the availability of qualified applicants, the following recruitment and hiring goals shall be established for blacks, Latins and women (blacks and Latins are referred to collectively in this paragraph 5 as minorities). It is understood that the goals are mínimums, and that the City shall seek to fulfill the goals by hiring blacks, Latins and women generally in proportion to their representation in the labor force. Only full time regular civil service employees who have successfully completed their probationary period, or, in the case of the Police and Fire Departments, those who successfully complete the police academy or fire college, shall be counted in determining progress toward the goals. Progress toward these goals shall be measured on an annual basis.
(1) For each entry level position of police officer, public service aide, fire fighter and traditionally white Anglo male positions in the Departments of Finance and Building, the goal shall be 56% minorities and women each year. For purposes of this subparagraph, traditionally white Anglo male positions shall include such positions as building inspector, zoning inspector. and skilled trades.
(2) For each traditionally black entry level service and maintenance position in the Departments of Sanitation and Public Works, the goal shall be 35% other than black each year. For purposes of this sub-paragraph, traditionally black entry level service and maintenance positions shall include such positions as laborers and waste collectors.
(3) For each entry level skilled craft, technical and lower level administrative position throughout the City, the goal shall be 50% minorities and women each year. For purposes of this subparagraph, skilled craft positions shall include such positions as mechanic (including automotive, air condition and heavy equipment mechanic), carpenter, electrician, lineman, machinist, painter, pipefitter, plumber and welder; technical positions shall include such positions as engineering, identification and planning technicians; and lower level administrative positions shall include white collar nontechnical positions such as administrative aide, clerk, secretary, keypunch operator.
(4) For each entry level paraprofessional position, 40% minorities. For purposes of this paragraph, paraprofessional shall include such positions as foreman, supervisor, computer programmer.
(6) For entry level official and upper level administrative positions, the goal shall be 20% minorities and women each year.
(b) Promotion
Subject to the availability of qualified applicants, promotional goals shall be established for minorities, on a department basis, with each department having as its yearly goal, until the long term goal has been met for a period of one year, either parity with the Miami City workforce population statistics or the percentage of minorities currently employed in the department, whichever is smaller. Priority opportunity for promotion (as defined in paragraph 7(b) below) within a particular department shall be provided to qualified persons who have indicated a desire or interest in the promotion, transfer and assignment opportunities created by this decree. Each person responding to this request shall be promoted or transferred pursuant to the provisions of paragraph 7 below.
6. Affected Class
The term “affected class”, as used in this decree, shall include the following:
(a) All incumbent black and Latin employees currently holding positions with the City who were initially assigned to traditionally black or Latin jobs.
(b) All incumbent women employees currently holding positions with the City who were initially assigned to traditionally female jobs.
(c) All blacks, Latins and women identified as having been discriminatorily denied employment opportunities (including promotion and terms and conditions of employment), or terminated since March 24, 1972.
7. Promotion and/or Transfer Pool
(a) The City shall compute the seniority of each member of the affected class interested in this provision based on the total seniority of that person with the City. The City shall maintain a list of people signing up under the provisions of this paragraph 7.
(b) A member of the affected class shall be given the initial opportunity to fill any vacancy in the City where the person is the senior applicant who meets, or could reasonably be expected to meet after an initial probationary period, the minimum qualifications for the position unless an applicant not a member of the affected class has demonstrably superior qualifications. This preference shall be exercised at the written election of the applicant. An affected class member using this preference who successfully completes the probationary period shall at that time be informed that s/he can remain in that position or return to his/her prior position.
(c) If no affected class member seeks or is entitled to a vacancy as provided in (b) above, the vacancy shall be filled pursuant to the procedures and goals for hiring set forth in this decree.
(d) All members of the affected class shall be notified of the provisions of this decree and specifically of the opportunity to transfer and/or be promoted to other positions either within the same department or in other departments when such vacancies occur and notices to fill them are posted by the Civil Service Board. At least ten (10) days before any such vacancies are to be filled, notices of the vacancies shall be posted at convenient locations in each department or division where members of the affected class are employed. Unclassified positions are exempt from this requirement.
(e) No member of the affected class who makes a lateral or downward transfer for the purpose of enhancing promotional opportunities, shall be paid at a lower rate than the rate for the job from which she transferred, including any regular within grade increments s/he would have received had s/he remained on that job. A person utilizing rate retention pursuant to this
(f) Rights of a member of the affected class under paragraph 7 are limited to (1) one successful promotion or transfer, or (2) three unsuccessful attempts to promote or transfer.
8. Specific Relief
(a) The City shall establish a fund in an amount sufficient to cover its back pay liability under this Decree. The dollar amount, identification of recipients, and terms for acceptance of back pay for affected class members shall be consistent with the provisions of this Decree and shall be determined by negotiations with the United States and the City.
(b) Certain persons identified in Paragraph 6(c) of this Decree have charges currently pending before the EEOC which were filed before the entry of this Decree and which allege employment discrimination by the City of Miami.
The United States and the City will make a good faith effort to resolve the aforementioned charges within the framework of this Decree.
In situations where agreement is reached concerning entitlement to specific relief for any of the aforementioned persons, the names of the persons and the specific relief agreed upon for each shall be submitted to the Court within an appropriate period.
In cases of disagreement between the United States and the City concerning resolution of the aforesaid charges, either party may apply to the Court for a resolution of the matter at issue.
(c) Nothing in this Decree will be construed as limiting the rights of any individual as provided by Section 706 of Title VII, 42 US Code, Section 2000e-5.
(d) Each person entitled to receive back pay or other specific relief pursuant to this Decree shall be offered such back pay or other relief conditioned upon execution of an agreement releasing the City from further liability for relief based on matters covered by this Decree occurring before its effective date. No back pay pursuant to this Decree shall be awarded for promotions or transfers made more than five (5) years after the effective date of this Decree. No person shall be entitled to receive back pay more than once.
9. Record Keeping
The City shall retain during the period of this Decree necessary records to support the implementation of this Decree. These records shall be made available to the Department of Justice for inspection and copying upon written request.
The City will maintain the following records:
(a) A list of all organizations and schools which are contacted pursuant to Paragraph 2, showing the date that any notice of job opportunity was mailed to them, the position and number of positions to be filled from that notice, and the date through which applications could be received for the job which was advertised, including a summary or compilation of all other recruitment efforts aimed at minorities and women, together with the date of said efforts and the names and positions of defendant’s employee who made the contact and the nature of the contact.
(b) All written applications and related records for all persons seeking employment with the City, including applications for transfer within or among departments, for
(c) Pass/fail results by race, national origin and sex for all selection standards administered by the City, except those excluded in paragraph 3(a) of this Decree.
(d) All written communications between the City and applicants for both initial entrance, transfer and promotion.
(e) Sufficient records on part-time, temporary and seasonal employee to assure accurate and complete reports for these employees as required in paragraph 10(h).
10. Reporting
Within ninety (90) days after the entry of the Decree, and following June 30 and December 31 of each subsequent year during the term of this Decree, the City shall report to the Attorney General [to the attention of Chief, Employment Section, Department of Justice, Washington, D.C. 20530 and of the Compliance Manager, Compliance Division, Office of Revenue Sharing, Department of the Treasury, Washington, D.C. 20226] the following inform:
(a) A summary showing the total number of employees by race, sex and national origin in each job classification of the City.
(b) The list of members of the promotion pool by department required by paragraph 7(a) of this decree.
(c) A report showing the positions for which persons in the affected class have applied, name of the person, the dates of such applications and whether or not such applications were successful. The report should also show any positions which the persons in the affected class have been offered but which they refused, showing both the job offered and the dates thereof.
(d) A list of all newly hired employees indicating the name, race, sex, national origin and job classification of each since the last report was filed.
(e) A list of all persons, by job classification, to whom promotion has been offered under paragraph 7(b) of this Decree and whether or not that promotion has been accepted.
(f) A list of all promotions, name, race, sex, national origin and date of hire of the employee promoted and the date of the promotion.
(g) A breakdown of the applicant flow of the City by race, sex and national origin which indicates the number of applicants by race, sex and national origin hired, rejected and pending for each job classification. A person is considered an applicant for this purpose upon filing a formal application when a job is posted and upon meeting the minimum qualifications for the position.
(h) Pass/fail results by race, national origin and sex for all selection standards administered by the City, except those excluded in paragraph 3(a) of this decree.
(i) A list of part-time employees, to include race, sex, national origin and job classification and term of employment.
11. EEO Officer
Copies of this Decree shall be provided by the Plaintiff to be posted in conspicuous locations within each Department and/or operational unit of City Department. Further, the City shall appoint an EEO officer for the City whose duties shall include:
(a) To advise black, Latin and female employees of the terms of this Decree.
(b) To receive and investigate complaints of race, sex and national origin discrimination; and to conciliate when appropriate; and
(c) To maintain a complete record of all actions taken in pursuit of the duties outlined above, including all correspondence directed to the defendant and/or any investigatory files. The individual appointed as EEO officer shall have his office hours and location posted conspicuously beside the Consent Decree.
12. Definitions. For purposes of this decree, the following terms shall have the meanings set forth below.
a. Assignment shall include the initial appointment of an employee to a particular
b. Black shall include males only.
c. Effective date shall mean the date of entry of this decree.
d. Honorable conditions shall mean honorable and general discharges.
e. Latin shall mean males of Cuban, Puerto Rican, Mexican or other Latin American origin.
f. Promotion shall mean the elevation of an employee to the next job classification in a given job ladder or line of progression.
g. Transfer shall mean the lateral movement of an employee from one line of progression to another, either within one department or among departments.
h. Women shall include all females, regardless of race or national origin.
13. Jurisdiction
The Court retains jurisdiction of this action for such further orders as may be appropriate. At any time after five years subsequent to the date of the entry of this Consent Order, the City may move the Court upon 45 days notice to the plaintiff for dissolution of this decree, and in considering whether the decree should be dissolved, the Court will take into account whether the City has substantially complied with this decree and whether the basic objectives of the decree have been achieved.
. On February 6, 1976, these defendants filed an amended answer which raised a fourteenth affirmative defense. On February 11, they filed a “motion to dismiss class action,” which appears never to have been acted upon by the court. It does not appear that the United States ever attempted to state any class claims, or to have this action certified as a class action.
. In the meantime, FOP and PBA had commenced discovery against the United States, and a motion to intervene as plaintiff by the Miami Community Police Benevolent Association (an association of black officers of the City of Miami Police Department) was denied.
. Discovery had continued to proceed, and the Miami Dade General Employees Association had moved to intervene as a defendant.
. The text of the decree is set out as an Appendix to this opinion.
. Equal Employment Opportunity Act of 1972, P.L. 92-261, 86 Stat. 103 (amending 42 U.S.C. §§ 2000e to 2000e-17).
. Reorganization Plan No. 1 of 1978, reprinted in [1978] U.S.Code Cong. & Admin.News 9795.
. The Supreme Court and lower courts have recognized that later statements by Congress clarifying the meaning of earlier legislation carry significant weight in the construction of the legislation. See, e. g. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 1952 n.7, 60 L.Ed.2d 560 (1979); Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 1801 n.8, 23 L.Ed.2d 371 (1969); N. A. A. C. P. v. Medical Center, Inc., 599 F.2d 1247, 1257 (3d Cir. 1979).
. As since amended, this section is now codified in 31 U.S.C. § 1242.
. Now codified in 42 U.S.C. § 3766. FOP also argues that jurisdiction under these statutes was not properly pleaded, and that the prerequisites for bringing suit under these sections were not complied with. We fail to understand what the FOP believes the United States did not do that was required to establish jurisdiction, as the complaint plainly asserts jurisdiction under these sections, and the FOP never states what prerequisites are necessary or where such prerequisites can be found.
. Section 122(a) of the State and Local Fiscal Assistance Act of 1972, supra, stated:
No person in the United States shall on the [basis] of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity, funded in whole or in part with funds made available under [this subtitle].
Section 518(c)(1) of the Crime Control Act of 1973, supra, stated:
No person in any State shall on the ground of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title.
. The FOP’s use of the quoted language seems to indicate that it believes the right asserted stems from the Fourteenth Amendment although it never so states and cites no authority for its assertion.
. The trial court did not dismiss the FOP from the action because it apparently felt that one provision of the consent decree would apply to the FOP:
The Defendant City of Miami, its officials, agents, employees, and all persons in active concert or participation with them in the performance of City functions (hereinafter collectively referred to as the City) are permanently enjoined and restrained from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any employee of, or any applicant or potential applicant for employment with, the City of Miami because of such individual’s race, color, sex or national origin
Since this provision does no more than restrain those affected from breaking the law, the FOP does not, and cannot possibly, complain that the provision abridges its rights.
. It should be understood that we are now dealing with the FOP’s rights as an organization, rather than any derivative rights it may have standing to assert as the representative of its members. The FOP’s derivative rights will be discussed in part III, infra.
. Fed.R.Civ.P. 19 provides in pertinent part:
(a) Persons to Be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest .
When the court vacated the consent decree on April 2, 1976, it stated that certain provisions of the decree directed activities by the city which would violate certain provisions of the collective bargaining agreement between the City and FOP. The possibility that this conflict would exist, as well as the possibility that actions of the FOP might interfere with any relief the court might grant, were apparently what led the United States to join the FOP as a defendant.
. Fed.R.Civ.P. 41 allows a lawsuit to be dismissed at any time by the consent of all parties.
. Recently, consent decrees in antitrust suits brought by the United States have been added to this list. See 15 U.S.C.A. § 16(e) (West Supp.1979).
. See pp. 1334-1335, infra.
. Unlike situations in which the parties are attempting to secure a settlement in a bankruptcy proceeding, shareholder derivative suit, or class action litigation, we need not fear here that any party is attempting to profit at the expense of unrepresented individuals. When the Justice Department advocates a settlement, we need not fear that its pecuniary interests will tempt it to agree to a settlement unfair to unrepresented persons. To the extent that financial concerns enter the decision-making process at all deliberations at the Justice Department, it is likely to be in the form of resource limitations tempting the responsible officials to accept compromise settlements providing relief short of what might be obtained at trial, in order that litigation resources may be marshalled for use against more recalcitrant offenders. See Zimmer and Sullivan, Consent Decree Settlements, 1976 Duke L.J. 163, 197 n.110 (1976). Although this is of concern to members of classes discriminated against who seek additional relief, see City of Jackson, supra, this possibility clearly did not underlie the trial court’s concerns about the proposed settlement. We also note that the Justice Department must represent the interests of all citizens, white as well as black, males as well as female. This is thus a further constraint on any tendency for affirmative action relief to go too far.
. Here of course, the FOP was actually a party to the lawsuit. Its submission of briefs and arguments ensured that the judge, as well as the government attorneys prosecuting the case, were aware of the interests of the FOP’s members.
. When the defendant in a discrimination suit objects to the relief sought by the government or a private plaintiff, the trial court has a well-defined inquiry: whether past discriminatory practices have occurred, and, if the defendant is shown to have discriminated, to what extent Title VII or other anti-discrimination statutes relied on requires that they be remedied. See generally International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). If the statute does not authorize relief for a certain type of proven discrimination, the trial court cannot order the defendant to provide it; if the statute does authorize relief, the trial court will ordinarily be given broad discretion in fashioning an appropriate “make-whole” remedy. See, e. g., Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974). This discretion is appropriate because the trial court will, after a trial of the disputed issues, be highly familiar with the extent of the violation; it is also necessary because the parties, left to their own devices, have failed to agree upon appropriate relief.
. See p. 1339, infra.
. See Alaniz v. California Processors, Inc., 73 F.R.D. 289 (N.D.Cal.1976), appeal on other grounds dismissed sub. nom. Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978).
. The history of the attempt to end discrimination in the fire department of the City of St. Louis is illustrative of the delay in ending discrimination that can be caused by protracted litigation, or avoided by settling the lawsuit by consent. The first complaint alleging discrimination was filed in January, 1974. After the Justice Department filed its own suit, and a class of non-black employees intervened, a trial was held. In mid-1976, the district court issued an order mandating affirmative action. An appeal was heard, Firefighters Institute, Etc. v. City of St. Louis, Mo., 549 F.2d 506 (8th Cir. 1977), certiorari was denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977), the case was remanded to the district court, further orders were entered, another appeal was heard, 588 F.2d 235 (8th Cir. 1978), certiorari was denied again, — U.S. —, 99 S.Ct. 3096, 61 L.Ed.2d 872 (1979), and the case returned to the district court. During these years, the number of black fire captains in the St. Louis Fire Department decreased from four to one and discriminatory policies were continued. Firefighters Institute, supra, 588 F.2d at 240.
. Congress has clearly indicated its intent that Title VII suits be handled by the courts as expeditiously as possible. See 42 U.S.C.A. §§ 2000e-5(f)(2), 2000e-6(b) (West 1974).
. In Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976), the Sixth Circuit stated the principle well:
Settlement agreements should ... be upheld whenever equitable and policy considerations so permit. By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before overburdened courts, and to the citizens whose*1335 taxes support the latter. An amicable compromise provides the more speedy and reasonable remedy for the dispute.
. We refuse to engage in any semantic dispute over the difference in meaning between “goals” and “targets” on the one hand and “quotas” on the other. We will gladly adopt any word proposed, so long as the thrust of affirmative action is not stayed.
. United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) upheld affirmative action in the context of a collective bargaining agreement with a private employer. Although that narrowly-drafted opinion is not directly relevant to the constitutional issue posed in the instant case because the defendant employers are municipalities, it does buttress our firm belief that affirmative action is consistent with the public policy of this country. Weber does establish that §§ 703(a) and (d) of Title VII, 42 U.S.C. § 2000e-2(a) and (d), do not bar the relief denied below. Although the defendants here were municipalities, unlike in Weber, it is now well-settled that Title VII standards do not vary depending on whether the defendant is a private or public sector employer. See Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Scott v. City of Anniston, Ala., 597 F.2d 897 (5th Cir. 1979); United States v. City of Chicago, 573 F.2d 416 (7th Cir.
. We also note that Mr. Justice Powell carefully avoided stating that preferential classifications not based on proven illegalities are per se unconstitutional; rather, he couched his discussion of this relationship in negative terms: e. g., “we have never approved preferential classifications in the absence of proven constitutional or statutory violations.” Bakke, supra, 98 S.Ct. at 2755 (opinion of Justice Powell).
. Congress has also particularly noted the problem of discrimination by public sector employers. In 1972, Congress amended Title VII to include public sector employers within the scope of its provisions. In its report on the amendments, H.Rep.No.92-238, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 2137, 2152, the House of Representatives focused explicitly on discrimination by public sector employers:
In a report released in 1969, the U.S. Commission on Civil Rights examined equal employment opportunity in public employment in seven urban areas located throughout the country — North as well as South. The report’s findings indicate that widespread discrimination against minorities exists in State and local government employment, and that the existence of this discrimination is perpetuated by the presence of both institutional and overt discriminatory practices. The report cites widespread perpetuation of past discriminatory practices through de facto segregated job ladders, invalid selection techniques, and stereotyped misconceptions by supervisors regarding minority group capabilities. The study also indicates that employment discrimination in State and local governments is more pervasive than in the private sector. The report found that in six of the seven areas studied, Negroes constitute over 70 percent of the common laborers, but that most white-collar jobs were found to be largely inaccessible to minority persons.
. Justices Brennan, Marshall, White and Blackmun.
. We note that Justice Brennan’s opinion accords no deference to the lower courts’ conclusion that the plan was unreasonable. Id. at 2792-93. We follow the same approach here, and undertake a full inquiry into the reasonableness of the proposed consent decree.
. Although the percentage of blacks in the City of Miami labor force in 1970 is quite close to the percentage of city employees in 1976 who were black, this lone statistic does not affect our conclusion in light of the evidence concerning job classifications and salary ranges.
. The statement of uncontested facts indicates that the City of Miami labor force is approximately 20.4 percent black, 46.9 percent Spanish-surnamed, and 44.0 percent female. Because the overlaps among these groups are not shown by these statistics, we cannot determine the precise total percentage of minorities and women in the labor force. However, it appears to exceed the highest percentage goal for women and minorities set in the decree, which is 56 percent.
. The FOP has never come forward to present any evidence to the trial court indicating that any of the goals used are unreasonable or would foreclose all opportunities to white workers. Absent evidence, we will not presume that a decree negotiated and discussed as carefully as this one has been will have such effects. We note that the Sixth Circuit has recently issued instructions to a district court which appear to endorse a presumption of rea
. § 703(h) states, in pertinent part:
Notwithstanding any other provision of this subchapter, it shall not be unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administratiomor action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.
. Since FOP’s argument is patently without merit, we need not decide whether it has standing to raise this issue on appeal, given the District Court’s finding, which it does not attack, that the Consent Decree does not violate the contractual relationship between the City and the FOP.
. Also, in Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), a class action suit challenged a provision in a collective bargaining agreement which awarded additional seniority to veterans equal to their period of service in the armed forces of the United States during World War II. Employees who had already started working at Ford were thus surpassed in seniority, and subject to lay-off before, subsequently-hired employees with seniority credit for military service. Despite this interference with the expectations of those who were employees at the time the collective bargaining agreement was signed, the provision was upheld. Cf. Hayden v. RCA Global Communications, Inc., 443 F.Supp. 396 (N.D.Cal.1978) (union and employer may amend collective bargaining agreement even if amendment affects seniority rights of some employees); Southerlan v. Office and Professional Employees International Union, Local No. 277, 396 F.Supp. 1207 (N.D.Tex.1975) (same).
. It is indisputable that elimination of racial discrimination in employment is an important public policy interest. See Franks, 96 S.Ct. at 1271 & n. 40.
. For example, it is possible that under some circumstances an employer who voluntarily adopted an affirmative action plan which causes an employee to be deprived of such a vested right under his employment contract might contractually be liable to the employee in damages, although the plan is perfectably acceptable under the Constitution and laws of the United States.