Equal Protection Clause"). The Court finds significance in the distinction between a procedure which denies a job to an applicant, who has little expectation of being hired, and one which denies a benefit to an incumbent employee, who has established some time in rank. This plan does not "trammel" on the interests of the white applicants, who have little in the way of protectible interests in terms of getting a job in the first place. Accord, Vanguards, 753 F.2d at 484 (the Sixth "Circuit has repeatedly indicated that a simple reduction in non-minority 'expectations' does not necessarily make a consent decree unfair or unreasonable").
The plan in Weber was held to be sufficiently temporary in that it was only to continue until the percentage of black craftworkers approximated the percentage of blacks in the relevant labor market. 443 U.S. at 208-09. In 1974, when the plan was instituted, the Kaiser plant had 273 craftworkers, only 5 of whom were black. 443 U.S. at 198. During 1974, the first year of operation of the plan, 13 employees were selected for the training program, seven of whom were black and six of whom were white. If this figure even remotely approximated the average number of yearly openings, mathematics tells us that the Kaiser plan was to continue considerably longer than the plan before the Court today. The Fire Department's plan will end on October 1, 1986, some eighteen months from now.
In addition to the Supreme Court, many other courts have approved affirmative action plans in effect longer than the one at issue here. E.g., Johnson, 748 F.2d at 1312 (indeterminate); Vanguards, 753 F.2d at 479, 485 (6th Cir. 1985) (4 years). Accordingly, the Court holds that the Fire Department's AAP meets the Weber requirement that it be temporary.
4. Consideration of Alternatives.
The Court of Appeals for this Circuit has established guidelines regarding the imposition of racial quotas. Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1294 (D.C. Cir. 1984); Thompson v. Sawyer, 219 U.S. App. D.C. 393, 678 F.2d 257, 294 (D.C. Cir. 1982). The discussion in these cases just cited occurred in the context of court-imposed quotas as remedies after judicial findings of discrimination. Although that context differs somewhat from that of the present case, namely, judicial approval of a voluntary plan incorporated in a consent decree, the Circuit Court's guidelines are nonetheless instructive.
In Thompson, 678 F.2d at 294, the court stressed that district courts "should consider whether alternative, equally effective methods could supplement or supplant resort to a quota." Accord, Segar, 738 F.2d at 1294. The Court now addresses these considerations.
The Fire Department's AAP nowhere indicates that the government considered alternatives to the quotas contained therein. The question of feasible alternatives, however, arose at oral argument. Upon consideration of one alternative to the hiring aspects of the plan, a physical agility test
apparently suggested by the United States, the Corporation Counsel stated that such an alternative might have an adverse impact on women. (Tr. at 90). Cf. Dothard v. Rawlinson, 433 U.S. 321, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977). Additionally, the Corporation Counsel indicated that the City feared possible liability in the event someone would be injured in such an agility test. (Tr. at 90-91). Counsel also stated that a lottery had been suggested, but that suggestion was rejected due to Congressional opposition. (Tr. at 91). The Court notes that such a lottery, in the form of random selection from the ranks of those who passed the entry-level test, would not provide any reward for a high score on the test. Even though the test is not proven to be job-related, the Court feels that there should be some incentive to do well, particularly in light of the reality that it is not difficult to pass.
Thus, as compared to the lottery suggestion, the plan better rewards the efforts of those who score well on the examination, and presents a more feasible solution to the problem.
Aside from the physical agility test, which was apparently suggested by the United States (Tr. at 90), none of the parties suggested any alternatives to the AAP's hiring quotas. The City would have been well-advised to have included in the AAP some mention of its consideration of alternatives, cf. Thompson, supra, and the Court is concerned that reasonable alternatives were not seriously discussed.
In light of the absence of any clear options, the hiring aspects of the plan cannot be struck down in favor of less objectionable alternatives.
5. The Effect of Stotts.
Nothing in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S. Ct. 2576, 81 L. Ed. 2d 483 (1984), compels rejection of the hiring aspects of the plan. In Stotts, black plaintiffs and the Fire Department had entered a consent decree for the stated purpose of remedying the Department's hiring and promotion practices with respect to blacks. Without admitting discrimination, the consent decree established an interim hiring goal of 50% of the Department's job vacancies with qualified blacks, and it attempted to ensure that 20% of the promotions in each job category be given to blacks. The consent decree contained no provision for layoffs, but by virtue of an earlier consent decree, seniority was to be computed, for the purposes of promotion, transfer, and assignment, "as the total seniority of that person with the City."
Financial troubles ensued for the City, and it had to lay off many employees. Layoffs were to be based on the "last hired, first fired" rule, pursuant to the seniority system. If a senior employee's position were eliminated, he could "bump down" to a lower ranking position. Because these layoffs would adversely affect blacks, the district court enjoined this layoff plan "insofar as it will decrease the percentages of black" employees. Thus, some non-minority employees with more seniority than minority employees were laid off or demoted.
The Supreme Court held that the injunction was improper, and could not be justified as an effort to either modify or enforce the consent decree. The court could not order the violation of a bona fide seniority system because § 703(h) of Title VII "permits the routine application of a seniority system absent proof of an intention to discriminate." 104 S. Ct. at 2587, citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 352, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). The majority, however, declined to decide the question most pertinent to this case:
Whether the City, a public employer, could have [adopted an affirmative action plan] without violating the law is an issue we need not decide. The fact is that in this case the City took no such action and that the modification of the decree was imposed over its objection.