Filed Date: May 27, 1975
Case Ongoing
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On January 4, 1974, the Ensley Branch of the National Association for the Advancement of Colored People, together with certain named individuals, for themselves and on behalf of others similarly situated, filed a complaint in the United States District Court for the Northern District of Alabama, against the City of Birmingham, the members of the Personnel Board of Jefferson County, and the Personnel Director of that Board, alleging that the defendants engaged in discriminatory hiring practices against Black people. A suit raising the same constitutional and statutory allegations was filed on January 7, 1974, by John W. Martin and other named plaintiffs [the "Martin class"] against the City of Birmingham, Jefferson County, and the Personnel Board of Jefferson County. On May 27, 1975, the United States Department of Justice ("D.O.J.") filed a lawsuit under Title VII, 42 U.S.C. §2000e, et seq., and 42 U.S.C. § 1981, in the United States District Court for the Northern District of Alabama against the Jefferson County Personnel Board, and the municipal and other governmental jurisdictions within Jefferson County. The DOJ asked the court for injunctive and monetary relief alleging a pattern or practice of discriminatory employment practices against Black people and women. On February 20, 1976, Lucy Walker filed suit challenging the employment practices of the Jefferson County nursing home.
All four cases were consolidated for trial. On December 20-22, 1976, trial was held on the merits of the limited issue of whether the two tests used by the Personnel Board to screen and rank applicants for positions as police officers and firefighters [were] discriminatory and a violation of the constitutional or statutory rights of Black people. All other issues under the complaints were reserved until a later date.
The District Court (Judge Sam C. Pointer Jr.) found that the police officer and firefighter tests violated Title VII. The court noted that both tests had a significant adverse impact on black applicants, a phenomenon defined as a passing rate "less than four-fifths . . . of the rate for [whites]." The judge ruled that the tests could be used only if, despite their adverse impact, they were sufficiently "job related" to predict effectively test takers' future job performance. The Judge Pointer concluded that the tests failed to meet this standard and found no statistically significant correlation between the applicants' scores on the firefighter test and their later job performance. A similar conclusion was made in regards to the police officer exam. The District Court ordered race-conscious relief "pending adoption of some selection procedure which either has no adverse effect upon black applicants or is sufficiently job-related. The original plaintiffs' claims against the City never reached trial, and the following two cases deal directly with the Personnel Board of Jefferson County.
The Board appealed the District Court's decision that the police and firefighter exams violated Title VII to the Eleventh Circuit Court of Appeals. In doing so, the Board did not contest the district court's finding that the two tests had an adverse impact, but contended that the tests were in fact job-related. The United States and the Martin class of black plaintiffs jointly cross-appealed the district court's holding that use of the tests did not begin to violate Title VII until the dates on which the negative results of the test validation studies were reported to the Board. The District Court had reasoned that, until the final results were reported, the Board was justified in using the tests in anticipation of favorable results from the validation studies. The Court of Appeals remanded the case back to the District Court for additional fact finding.
While the first appeal was pending, the District Court conducted a second trial. That trial involved challenges to other Board practices, including: written tests for eighteen more positions; various rules affecting promotional opportunities; the imposition of height, weight, and educational requirements for certain jobs; and the restriction of some job announcements and certifications to persons of a particular sex. While the first proceeding was on remand and the second was at trial, the parties entered settlement talks that eventually suspended both proceedings. The plaintiffs, in all the cases, entered into extensive negotiations with the Board and the City which culminated in two proposed consent decrees, one with the Board and one with the City. The parties submitted proposed consent decrees that settled all claims against the City and the Board, including allegations of gender discrimination raised by the United States. Although these decrees provided retrospective monetary relief such as back pay for some individuals, their keystone was an extensive regime of affirmative action for Black people and women.
The Personnel Board of Jefferson County decree had various stipulations that had to be met, specifically: (1) subject to the availability of qualified applicants, that the Board annually certify Black people and women either according to racial and gender quotas set forth in the decree or in proportion to their representation in the applicant pool, whichever was higher. The decree's minimum certification rates ranged from ten to fifty percent, depending on the position involved and whether the goal applied to Black people or women. This stipulation would continue until the proportion of Black people and women employed by the City in any given job classification approximated the respective percentages [of Black people and women] in the civilian labor force of Jefferson County; (2) the Personnel Board must periodically review its hiring and promotion procedures to ensure that the procedures either had no adverse impact or were sufficiently job-related to pass muster under Title VII; (3) as long as the Board's procedures -- whether job related or not -- had a disparate impact on Black people or women, the Board must make a good faith effort to determine whether there are any alternative testing procedures which would reduce any adverse impact; (4) the decree prohibited the Board's prior practice of restricting job announcements on the basis of gender; (5) the decree mandated continued aggressive recruitment of Black people and women.
The decree that the City of Birmingham entered into was similar to the Personnel Board decree. The city decree stipulated: (1) annual "goals" for hiring and promoting Black people and women and a "long term goal" of parity between the proportion of Black people and women in any City job classification and the proportion of Black people and women in the civilian labor force, specifically the city must hire and promote Black people and women according to either racial and gender quotas set forth in the decree, or at the rate of Black and female representation in the applicant pool, whichever was higher; (2) the City also agreed to request the Board selectively to certify qualified Black people and females whenever necessary to provide the City with a certification list that contains sufficient numbers of Black people and females to meet the decree's goals.
During all the years of litigation involving the City and the Personnel Board, the defendant Jefferson County avoided the same scrutiny. Their original consent decree did not come until a year later than the consent decrees involving the City and the Personnel Board. The Court (Judge Sam C. Pointer Jr.) entered it on December 29, 1982, and it was signed by the Jefferson County, United States and one of the private class of plaintiffs. The County's consent ordered differed from the ones with the City and the Board. Its major purpose was to ensure that Black people and women are considered on equal basis with whites and males for employment. The County was enjoined from engaging in practice or pattern of racial and gender discrimination. The County was required to hire the percentage of Black people and females as linked to the number of qualified applicants, as determined under the nondiscriminatory procedures of both the Board's decree and the County's decree. Unlike the other two decrees, it has not been modified since.
In August 1981 the court held a fairness hearing to consider the objections of all interested parties. Several interested non-parties soon appeared to challenge the decrees, claiming that the decrees would adversely affect their employment opportunities. Chief among the objectors was the Birmingham Firefighters' Association ("B.F.A."), a labor association representing a majority of City firefighters, most of whom were white males. The B.F.A. contended that the proposed consent decrees would have a substantial adverse impact upon them.
The court reasoned that the decrees did not preclude the hiring or promotion of whites or males and that the city's hiring goals were expressly made subject to the caveat that the city decree was not to be interpreted as requiring the hiring or promotion of a person who is not qualified or of a person who is demonstrably less qualified according to a job-related selection procedure. Subsequently, the court denied their motions as untimely, and approved, and entered, both consent decrees. The United States Court of Appeals for the Eleventh Circuit upheld the dismissal of the intervenr's cases.
The District Court's approval of the consent decrees, and the Eleventh Circuit Appeals Court's refusal to allow the B.F.A. to intervene, brought forth a collection of cases that has come to be known as the "Birmingham Reverse Discrimination Employment Litigation." In these cases, a number of male, non-Black City employees collaterally attacked the decrees and the "affirmative action" programs adopted under them. The United States, despite its status as a signatory of the consent decrees, also brought suit against the City, lodging allegations similar to those of the individual plaintiffs. The court dismissed for lack of evidence all claims against the Personnel Board leaving only the claims against the city standing. At trial, the plaintiffs claimed that some Black people were promoted over more-qualified non-Black people despite the fact that the City decree specifically did not require the City to promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure. The district court found for the City, holding that the City had shown that its employment actions were required by the decrees.
On appeal, the Eleventh Circuit reversed the decision finding that this limitation was unfair to the male, non-Black plaintiffs, because they had not participated in the negotiation or signing of the consent decrees. The Appeals Court directed the District Court to re-examine the legality of the decrees under the heightened scrutiny applicable to voluntary government affirmative actions plans. The Appeals Court decisions also allowed the Wilks class (non-Black, male city employees) to intervene in challenging the legality of the decrees. This decision was upheld by the United States Supreme Court in Martin v. Wilks, 490 U.S. 755 (1989).
The District Court on remand once again found for the city, finding significant evidence of past discrimination to support its affirmative action program and that the affirmative action provisions were narrowly tailored because the City had first tried alternative measures. The United States could not collaterally challenge the decrees but was able to seek modifications to them. After holding a hearing on these issues, the district court ordered several modifications to the decrees acknowledging that the decrees have impaired some employment or promotional opportunities of whites and males. Furthermore, the court stated that forty-five percent of the City's full-time employees were Black and twenty-three percent were female as of September 1990 fulfilling to some extent the original long term goal of the decrees. The modifications to the City of Birmingham decree were as follows: (1) The City must stop using annual goals for any particular job classification once the long-term goal for that classification is met; (2) The City must stop using annual goals for any promotional position once the long-term goal is met for the position from which the promotional candidates are normally chosen, except that the City should continue to promote Black people and women to high-level police and fire positions in proportion to those groups' representation in the position from which promotions are normally made until the long-term goal is reached with respect to the high-level positions; (3) The City must stop using annual goals for any particular job classification once the Board develops lawful screening procedures for that job; (4) The City should group similar jobs together for the purpose of determining whether a particular goal has been met; (5) The district court will, in 1996, reconsider the appropriateness of continuing the City decree.
The District Court made only one modification to the Personnel Board decree, the modification requires that, until the Board develops a lawful test for a particular position, it must, at the City's request and subject to the availability of qualified applicants, certify Black and female candidates for that position in proportion to their representation among applicants -- even after the City has met its long-term goal for that position.
In 1994 the Eleventh Circuit Court of Appeals (Circuit Judge Edward Earl Carnes) rendered a decision that required the District Court to modify the original decree so that the City would be ordered to implement valid job selection procedures forthwith. On December 19, 1995, the decrees were modified again pursuant to instructions given by the court. The City's consent decree was modified to require the City to remove all race and gender conscious selection procedures from its employment policies. After the remand in Ensley v. Branch, the parties clarified their differences, narrowing to fourteen the number of positions that some or all parties contended were being filled by selection procedures that had an adverse impact. The City decree was modified yet again in December 18, 2000 to direct the City to provide data as to the impact of its selection procedures upon hiring for those jobs. At the same time, the decree was extended until June 2002. On June 19th, 2002 the consent decrees were once again extended.
On July 8th, 2002 Judge C. Lynwood Smith, Jr. appointed Ronald R. Sims as receiver of the Jefferson County Personnel Board whose duties are chiefly to ensure that the Personnel Board complies fully in a timely and cost efficient manner to the 1981 and 1995 modified consent decrees.
The City's initial motion to terminate its consent decree was filed on July 6, 2004. On December 2, 2004 the parties entered into a joint stipulation regarding selection procedures for the city in seven distinct job classifications. On December 9, 2004 the consent decrees were extended pending a motion to dismiss. On July 12, 2005 the District Court concluded that with the sole exception of one job classification had "substantially achieved the basic purposes of paragraph 5 of its 1995 Modification Order," and had shown that its employment selection procedures do not result in an unjustifiable, discriminatory impact on the basis of race or sex. Therefore, the City's motion to terminate was granted with respect to all job classifications except one, and judicial supervision of the City was retained. The District Court subsequently directed the City: (1) to revise its selection procedure for the Fire Apparatus Operator classification; (2) await a certification of eligible applicants from the Personnel Board of Jefferson County ("Personnel Board"); 3) administer the revised selection procedure; and (4) deliver the results of the administration of the revised procedure and a validation study to the parties and Special Master for their consideration and objections, if any. The City of Birmingham complied and delivered the results of its administration of a revised selection procedure and a validity study to the parties on September 20, 2006. On August 20, 2007 Judge C Lynwood Smith, Jr. denied the City's motion to terminate the remaining portion of the consent decree and to be dismissed as a party.
In December of 2007, defendants filed a motion for final relief from the 1981 Consent Decree, subsequently followed by a series of negotiations surrounding the inclusion of various plaintiff subclasses. In May, 2008, private plaintiffs moved for permanent injunction barring implementation of the Race-based Provisions of Act No. 2008-408 of the Regular Session of the Alabama Legislature, and were joined by the Board. In June, 2008, the city of Birmingham filed a motion to dismiss the city as a party of the case and to terminate the City of Birmingham Consent Decree. In the following months, responses were filed to both of these motions, as well as a series of status conferences and evidentiary hearings. On September 12, 2008, the Court (Judge C. Lynwood Smith Jr.) issued an opinion, granting the Board and private plaintiff's motion for injunctive and declaratory relief from the Alabama Act No. 2008-408. The Act was declared void ab initio, as violating the Supremacy Clause.
On November 20, 2008, the court ordered that the 1981 Consent Decree with the Personnel Board of Jefferson County be immediately and unconditionally terminated, however the City of Birmingham Consent Decree still remains in effect.
On May 14, 2009, the court awarded attorney's fees in the amount of $2,500,000.00 to the two private classes of plaintiffs against the Personnel Board.
On March 1, 2011, the City filed its fourth motion to terminate its consent decree, and following a hearing at which no party objected, federal supervision of the City of Birmingham ceased on January 27, 2012, and the City was dismissed as a party. The court found full and satisfactory compliance with the City's consent decree.
On March 16, 2012, the court approved a consent decree for attorneys fees in which the City agreed to pay the two private classes of plaintiff $350,000.
In 2006, the private plaintiffs started gathering evidence on the compliance of the County with the consent decree. On October 3, 2007, they filed a motion to hold the County in contempt and to modify the consent order. The County admitted it disobeyed the decree in various ways, including among others, failure to follow the recruitment procedures, failure to instruct personnel of the need to follow the decree, and failure to file reports. The matter, however, spent a long on discovery and on the matters involving the City. In the interim, the court (Judge C Lynwood Smith Jr.) granted several hiring orders to allow the County to fill vacancies. It also issued several temporary orders holding the County in contempt until final resolution of the matter, with instructions on recruitment and hiring to the County. On August 20, 2013, the court issued an opinion, holding the County in contempt. It rejected the reasons for noncompliance and ordered the parties to confer on the identity of the receiver and the modifications to the original 1982 decree.
On October 16, 2013, the court entered a modified consent decree. The decree included general prohibition of discrimination on the basis of race, color or sex, and retaliation. The decree provided that the County had to implement following procedures: accelerated recruitment of black and female applicants, corresponding to the percentage of qualified Black people and women given by the Board's lists; recruitment into certain departments; affirmative recruitment procedures aimed at Black people and women; and other various procedures aimed at preventing racial and gender discrimination. Any failure to meet the objectives required a showing of good effort. The County also agreed to pay $298,000 in settlement of individual claims. It also included the recordkeeping and reporting requirement to be followed by the County. On November 12, 2013, the Court entered a modified decree, to address errors and omissions of the October 16, 2013 decree.
On October 25, 2013, the court appointed Ronald R. Sims as receiver to ensure the County's full compliance with the modified consent decree. Lorren Oliver was appointed as a replacement reporter beginning on June 11, 2015.
On December 19, 2013, the court granted defendants' unopposed motion to Terminate the Temporary Orders governing Jefferson County's hiring procedures. On March 16, 2017, the parties submitted a joint motion to terminate the consent decree with respect to the Sheriff of Jefferson County and requested approval of a settlement agreement. That motion was granted in part by the Court on March 23 with recording and reporting requirements kept in place.
On June 21, 2017, the court also granted plaintiffs motion for attorney's fees, and the final settlement was approved. Judgment was entered in favor of Cravath, Swaine & Moore, LLP, John W. Martin, et al, and Gwendolyn Bryant, et al, jointly and severally and against the Sheriff in the amount of $150,000.00.
On June 6, 2018, the court adopted the proposal by the receiver to transition authorities back to the County and allow various departments to re-assume responsibilities for tasks like hiring employees and reporting compliance.
On September 1, 2020, the parties jointly moved to terminate the consent decree against Jefferson County. On December 21, 2020, the court granted the joint motion for termination subject to an additional 18-month window where recording and reporting requirements were kept.
The court further awarded $7,289,532.90 in attorneys' fees on April 2, 2021. As of April 8, 2021, this case is ongoing.
Summary Authors
Joshua Arocho (6/25/2012)
Zhandos Kuderin (7/16/2014)
Michael Beech (3/9/2019)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4127179/parties/usa-v-jefferson-cty/
Adams, Oscar W. III (Alabama)
Adelstein, Jay (District of Columbia)
Agricola, Algert Swanson Jr. (Alabama)
Ahnert, Janell M. (Alabama)
Alexander, James P (Alabama)
Anderson, Robert Lanier III (Georgia)
Black, Susan Harrell (Florida)
Blackmun, Harry Andrew (District of Columbia)
Brennan, William Joseph Jr. (District of Columbia)
Breyer, Stephen Gerald (District of Columbia)
Hatchett, Joseph Woodrow (Florida)
Kravitch, Phyllis A. (Georgia)
Marshall, Thurgood (District of Columbia)
Pointer, Sam Clyde Jr. (Alabama)
Smith, Charles Lynwood Jr. (Alabama)
Adelstein, Jay (District of Columbia)
Angus, James S (District of Columbia)
Cooper, James Michael (Alabama)
Cunningham, John Patrick (District of Columbia)
Fallon, James M. (District of Columbia)
Fitzpatrick , Raymond P. Jr. (Alabama)
Levi, Edward H. (District of Columbia)
Lewis, Elizabeth A. (New York)
Lynaugh, Margaret E. (New York)
Moore, Robert T. (District of Columbia)
Pottinger, J. Stanley (District of Columbia)
Powell, Charles A. IV (Alabama)
Proll, Leslie M. (District of Columbia)
Rafferty, Thomas G. (New York)
Ritter, Richard J. (District of Columbia)
Ruiz, Hector Federico (Alabama)
Selig, Joel (District of Columbia)
Seymour, Richard Talbot (New York)
Sperber, Joseph J. IV (District of Columbia)
Spitz, Stephen L (District of Columbia)
Tatel, David S. (District of Columbia)
Thawley, Barbara E (District of Columbia)
Agricola, Algert Swanson Jr. (Alabama)
Battle, Laveeda Morgan (Alabama)
Brooks, Hycall Brooks (Alabama)
Drake, Russell Jackson (Alabama)
Gale, Fournier J. III (Alabama)
Green, Anna Christine (Alabama)
Greggs, Mitchell David (Alabama)
Jackson, Michael Leon (Alabama)
Johnson-Cole, Tiffany N (Alabama)
Johnston, Brice Martin (Alabama)
Kendrick, Michael G. (Alabama)
Lawson, Theodore A III (Alabama)
Mays, Stephanie Houston (Alabama)
Merkle, Sarah Elizabeth (Alabama)
Murphy, Grace Robinson (Alabama)
Murrill, James Edward Jr. (Alabama)
Obradovic, V Michelle (Alabama)
Perkins, Byron Renard (Alabama)
Rigsby, Nefertari Sudetta (Alabama)
Riley, Robert R. Jr. (Alabama)
Shirley, Elizabeth Bosquet (Alabama)
Smith, David Michael (Alabama)
Somerville, William G III (Alabama)
Stewart, Marvin L Jr (Alabama)
Strickland, Edwin A. (Alabama)
Vanterpool, Jonice M. (Alabama)
See docket on RECAP: https://www.courtlistener.com/docket/4127179/usa-v-jefferson-cty/
Last updated May 13, 2025, 1:27 a.m.
State / Territory: Alabama
Case Type(s):
Special Collection(s):
Civil Rights Division Archival Collection
Key Dates
Filing Date: May 27, 1975
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
United States on behalf African-Americans and women applicants for municipal and governmental positions within Jefferson County, and non-black plaintiffs alleging reverse discrimination.
Plaintiff Type(s):
U.S. Dept of Justice plaintiff
Attorney Organizations:
U.S. Dept. of Justice Civil Rights Division
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Defendant Type(s):
Case Details
Causes of Action:
Title VII (including PDA), 42 U.S.C. § 2000e
Constitutional Clause(s):
Available Documents:
Injunctive (or Injunctive-like) Relief
U.S. Supreme Court merits opinion
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Content of Injunction:
Develop anti-discrimination policy
Utilize objective hiring/promotion criteria
Follow recruitment, hiring, or promotion protocols
Comply with advertising/recruiting requirements
Other requirements regarding hiring, promotion, retention
Post/Distribute Notice of Rights / EE Law
Provide antidiscrimination training
Implement complaint/dispute resolution process
Goals (e.g., for hiring, admissions)
Order Duration: 1981 - 2020
Issues
General/Misc.:
Discrimination Area:
Discrimination Basis:
Affected Race(s):
Affected Sex/Gender(s):