Late Challenges to Minority Job Benefits Upheld

The Supreme Court, in a move that could further undercut affirmative action plans, Monday expanded white men’s legal options for challenging court-approved job policies that provide preferential treatment for minorities or women.

The 5-4 ruling by the court’s conservative bloc was decried by civil rights activists as another setback for blacks, Latinos and women in the workplace.

Recent high court decisions “demonstrate the majority’s clear hostility to women and minorities,” said Patricia Ireland, an attorney and vice president of the National Organization for Women.

Seen as Blow to Employers

However, an attorney for a group of white firefighters at the center of Monday’s case said the ruling was a blow essentially to employers who “don’t care about qualifications” in filling jobs.

For decades, when plaintiffs or the government went to court charging job discrimination, employers often responded by settling the suits through court-approved agreements to hire and promote more minority members or women.

Until Monday, a judge’s order settling a job discrimination suit had been considered final. Now, thousands of court decrees, extending from small-town police departments to giant corporations, could be reopened to legal attack, lawyers said.

The high court gave white firefighters from Birmingham, Ala., another chance to attack a court-ordered plan that required the hiring and promotion of more blacks in the fire department.

It “is part of our deep-rooted historic tradition that everyone should have his day in court,” Chief Justice William H. Rehnquist wrote for the majority.

Meanwhile, the conservative majority took a different tack in a second job discrimination ruling Monday. The justices said that three women who lost their jobs because of an allegedly discriminatory change in seniority rules cannot sue. Because the policy change was made in 1979, the women should have challenged it then, not in 1982, when it resulted in their demotions, the court said on a 5-3 vote.

To permit the women to sue three years after the change would have “disruptive implications,” Justice Antonin Scalia wrote for the majority.

Congress Urged to Act

The two job-bias rulings Monday, combined with last week’s decision limiting the scope of federal anti-discrimination laws, spurred civil rights attorneys to urge Congress to enact legislation to compensate for the pattern being set by the court.

“When women try to challenge a seniority system, they say: ‘Sorry, it’s too late.’ But when white men want to go after a final consent decree, they say: ‘You can take another bite of the apple,’ ” Ireland said.

Rep. Don Edwards (D-San Jose), chairman of the House Judiciary Committee’s subcommittee on civil and constitutional rights, assailed the court for “dealing blow after blow to 25 years of progress in civil rights law.”

The ruling in the Birmingham case “will open old wounds and create unfortunate new levels of racial animosity,” he said.

During the Ronald Reagan Administration, lawyers for the Justice Department had sought to reopen and attack affirmative action plans in effect in more than 50 cities. But they were rebuffed in the lower courts.

White Policemen Rebuffed

In 1987, white police officers from New York City sought an order allowing them to challenge an affirmative action plan, but the justices split 4 to 4 in the case and issued no ruling.

Since then, Justice Anthony M. Kennedy, Reagan’s third appointee, has taken his seat on the court, and he supplied the crucial fifth conservative vote Monday to permit the renewed legal attacks on affirmative action orders.

The attorney for the white firefighters said that, without the change in the court’s makeup, his clients would never have obtained a favorable ruling.

“The city of Birmingham is using a one-for-one racial quota. They don’t care about qualifications,” attorney Raymond P. Fitzpatrick Jr. said in a telephone interview. “I think we can prove it is unconstitutional,” he added.

Until 1958, Birmingham had a “whites only” policy for jobs in its police and fire departments, as well as for its civil servants. Even after the 1964 Civil Rights Act barred such discrimination, it was four years before the city hired its first black firefighter, and six more years before any more blacks were hired, according to court briefs. At that time, nearly half of the city’s population was black.

In 1974, the NAACP filed suit against the city. After hearings and negotiations, the city and the civil rights lawyers came to a settlement in 1981. Because no blacks held any supervisory jobs in the fire department, the city agreed, among other things, to promote one black for each white promoted.

The white firefighters, although aware of the settlement talks, chose not to participate in the case. After a judge approved the settlement in a final order in 1981, seven white firefighters filed suit to challenge it.

Eight regional appellate courts, including the U.S. 9th Circuit Court of Appeals in California, have ruled that outside parties may not attack final court orders if they were notified and chose not to participate in a settlement. But last year, an appeals court in Atlanta ruled for the white firefighters on a 2-1 vote, and the Supreme Court upheld that ruling Monday.

“The message of this ruling to civil rights attorneys is: Don’t come into federal court. Because, even if you win, people can come along the next year or the year after to attack you again,” said Patrick O. Patterson, a lawyer for the NAACP Legal Defense and Education Fund in Los Angeles. He estimated that thousands of consent decrees and court orders could be affected by the ruling.

Lawyers for 32 states, including California, as well as the National League of Cities, the National Assn. of Counties, the National Conference of State Legislatures and the Equal Employment Advisory Council, which represents 200 major corporations, filed briefs urging the court not to allow suits attacking settled affirmative action plans.

Rehnquist’s opinion in the case (Martin vs. Wilks, 87-1614) was joined by Justices Byron R. White, Sandra Day O’Connor, Scalia and Kennedy.

The second case (Lorance vs. AT&T; Technologies, 87-1428) concerned the time limits for filing discrimination suits under the Civil Rights Act.

Until the late 1970s, women working at an AT&T; plant in Illinois said that they were unable to obtain promotions to higher paying, skilled jobs. In 1979, just as women were moving up to the better jobs, the company and its male-dominated union signed a new collective bargaining agreement that changed seniority rules. Before, seniority had been dated from the time an employee went to work at the plant. But, after 1979, seniority was based on the time served in a job.

During the 1982 recession, three women in skilled jobs were laid off because of their low seniority. They then filed a suit charging that AT&T;’s policy was discriminatory. The company responded that the suit was filed too late to be valid.

When the case reached the Supreme Court, the Justice Department sided with the women, saying that the “only sensible date” to use in calculating the statute of limitations is the day when they were hurt by the new seniority policy.

But Scalia disagreed. It “could defeat the settled expectations of her co-workers” if a woman could attack established seniority policies, he said. His opinion was joined by Rehnquist, White and Kennedy as well as Justice John Paul Stevens. O’Connor, without explanation, did not vote in the case.

In other actions, the court:

--Ruled, 5 to 4, that a jury choosing between a death sentence and a life prison term cannot be told about the personal characteristics of the murder victim. To do so would be unfair and prejudicial, the court said. White provided the liberals with the key vote in the case (South Carolina vs. Gathers, 88-305).

--Decided, 5 to 4, that lawyers who win extra Social Security benefits for their clients in administrative hearings are entitled to fees paid by the government. O’Connor wrote the opinion, joined by the four liberals. (Sullivan vs. Hudson, 88-616).