again two years later. She failed the second time although she had improved her performance on the test. The city provided no justification for changing the scoring standard. The steeper scoring proved to have a grossly disproportionate impact on women applicants. In 1983, less than 13 percent of the female applicants passed the test, compared with 93 percent of male applicants. As of 1988, no women were among Evanston, Illinois firefighters. Ruling before Wards Cove, the district court found that the employee and the members of her class had proved discriminatory impact and awarded her relief. The court of appeals vacated the decision after Wards Cove because the U.S. Supreme Court, like Evanston, Illinois, had raised the entry barrier higher for her and for all women who aspired to jobs gendered male.5 Martin v. Wilks, 490 U.S. ——, 109, S.Ct., 104 L.Ed.2d 835 (June 12, 1989). A group of white firefighters sued the City of Birmingham, Alabama when, for the first time in its history, the city promoted a black man to the position of lieutenant in the fire department. The city's promotion decision was made pursuant to a consent decree entered to settle a prior lawsuit brought by blacks against the city charging racially discriminatory hiring and promotion practices in violation of Title VII of the Civil Rights Act of 1964.

White firefighters brought this action against the city charging reverse discrimination claiming that the city was precluded from defending its employment decisions relying on the consent decree. The white firefighters knew about the prior suit when it was being litigated, and they were content to sit on the sidelines without intervention. No basis existed for challenging the validity of the consent decree. It was undisputed that the white firefighters were not bound by the prior judgment because they were neither parties to the action nor were they represented by persons who were parties. The question was whether the white firefighters could charge the city with discrimination against them as if the prior judgment did not exist. The majority of the Court (5-4) rejected the city's contention that the promotions were immunized from challenge if the promotion was either required or permitted by the terms of the prior decree. The result is to destroy any reliance on consent decrees or judgments entered after trial on the merits in employment discrimination cases. The black firefighters following Martin v. Wilks will have to retain lawyers anew-if they can find any to take their cases-to defend what they thought they had already won.

The outcome is inconsistent with the purposes of title VII as enacted in 1964, and amended in 1972. Title VII was intended to encourage voluntary compliance. How many employers will risk settling a discrimination case and implementing remedial plans when the outcome is likely to be multiple challenges to the settlement and relitigation of the underlying claims, again and again?

For women struggling to enter jobs formerly classified as male only and for those who seek promotion if they have somehow managed to climb over the entry barriers, it means that court approved plans similar to that involved in Martin v. Wilks are subject to challenge every time a woman is hired or promoted pursuant to court order. For example, court ordered remedies to correct discrimination against women in the San Francisco Police Department, the North Carolina Highway Patrol, and virtually all of Memphis, Tennessee city jobs are subject to challenge in court each time an attempt is made to implement them as a result of this decision. The damage does not end there. Non-parties or "sideline sitters" have been given the means by the majority of the U.S. Supreme Court to launch repeated challenges to final court orders unrestricted by any time limits. The decision thwarts congressional will in enacting title VII, and it generates needless litigation in courts already reeling from case overloads.

Since the U.S. Supreme Court decision in Wilks, new "reverse discrimination" cases have been spawned in numerous localities including Birmingham, Alabama; Boston, Massachusetts; Oakland, California; Cincinnati, Ohio; San Francisco, California; and Toledo, Ohio among others. The Birmingham firefighters' case is proceeding anew in the district court after the U.S. Supreme Court's decision in favor of the white firefighters ability to challenge the consent decree. In addition to numerous interventions of new plaintiffs in the existing litigation, another case has been initiated. Two white deputy sheriffs working for the Jefferson County Sheriff filed a lawsuit alleging race and sex discrimination against them because blacks and women were finally promoted in more than token numbers to the first-level of supervision in the Sheriff's Department. The plaintiffs in the new case claim that the

Evans v. City of Evanston, 881 F.2d 382 (7th Cir. 1989).

consent decree with Jefferson County, Alabama, entered in March 1983 in the original Martin litigation and the 1981 personnel board decree are unlawful."

Three "reverse discrimination" suits were filed in Boston in the early fall of 1989-all attempting to reopen longstanding consent decrees, which in turn had ended years of litigation. One month after Wilks, a lawsuit was filed by white and hispanic male applicants for firefighter positions in Oakland, California, alleging that a May 1986 consent decree unlawfully discriminates against them on the basis of race and gender. The lawsuit specifically states that it was being brought pursuant to the Wilks decision as a collateral attack on the 1986 consent decree.R

Two "reverse discrimination" cases are now pending against the City of Cincinnati because of Martin v. Wilks. The first was filed before the court decided Wilks, but it received new life as a result of the decision despite previous Sixth Circuit rulings against collateral attacks. The second case was filed after the Wilks decision and alleges race and sex discrimination against white males in police department hiring because of what the plaintiff contends is a misapplication of a 1981 consent decree. Four new "reverse discrimination" cases have been filed against the City of San Francisco since Martin v. Wilks was decided. The four involve the fire department, the police department, the public school system and the community college system. 10 These cases continue indefinitely already lengthy litigation over discrimination in the City of San Francisco. In January, 1990, in Toledo, Ohio, white applicants for firefighter positions with the City of Toledo filed a lawsuit alleging that they should have been appointed to firefighter positions under their interpretation of a 1974 consent decree.11 They have asserted that they were not parties to an August 1989 court order which modified the way hiring for black and white firefighter trainees was done under the decree. 12

The initiation of these lawsuits dramatically illustrates the dilemma posed by the Court in its selection of the Rule 19 mandatory joinder alternative as the solution to the Martin v. Wilks controversy. Non-parties or "sideline sitters" have been given the wherewithal by the Court to launch repeated challenges to final court orders, unrestricted by time limits.

Tension always exists between the finality of judgments and correction of errors in judgments, between parties to litigation and non-parties who may be adversely affected by the decision. Remedial decrees in employment discrimination cases almost always remove advantages enjoyed by one group in favor of correcting inequities to another. The law of judgments is complex because the law seeks both to protect the constitutionally secured right to an opportunity to be heard and the fi

6 Williams v. Bailey, CV 89-PT-1241-S (N.D. Ala.). The portion of the case which went to the U.S. Supreme Court in Martin v. Wilks did not include any claims arising out of the County Consent Decree, United States v. Jefferson County, 28 FEP Cases 1834 (1981), 720 F.2d 1511 (11th Cir. 1983) (denial of intervention affirmed on appeal).

7 Mackin et al. v. City of Boston et al., Civil Action No. 89-2025-N challenges the Consent Decree entered in Boston Chapter NAACP v. Beecher, 371 F. Supp. 507 (D. Mass. 424 (1974), aff'd 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 424 (1975); Fagan et al. v. City of Boston, et al., Civil Action No. 89-2076-N challenges the Consent Decree entered in Castro v. Beecher, 365 F. Supp. 655 (D. Mass. 1973); Stuart et al. v. Roach et al., No. 89-2348 Mc. challenges the Consent Decree dated October 31, 1985 in Massachusetts Association of Afro American Police. Inc. (MAAAP) v. Boston Police Department, 106 F.R.D. (D. Mass. 1985), aff'd 780 F 2d 5 (1st Cir. 19885) cert. denied, 478 U.S. 1020 (1986).

• Complaint in Peterson et al. v. The City of Oakland, California, et al., C-89-2784-WHO (N.D. Cal., July 27, 1989), para. 5 and para. 6, p. 3.

Jansen et al. v. The City of Cincinnati et al., C-1-89-079, (S.D. Ohio, February 2, 1989); Vogel v. City of Cincinnati, No. C1-89-683 (S.D. Ohio, November 14, 1989).

10 Van Pool v. City and County of San Francisco, No. 903108 (Superior Court for the City and County of San Francisco), Van Pool challenges the Consent Decree entered in U.S. and Davis v. San Francisco, 656 F.Supp. 276 (N.D. Cal. 1987), aff'd, 890 F.2d 1438 (9th Cir. 1989); Ratti v. The City and County of San Francisco, No. 911141 (Superior Court of California for the City and County of San Francisco), Ratti challenges the decree entered in Officers for Justice v. City and County of San Francisco, 473 F.Supp. 801 (N.D. Cal. 1979), aff'd, 688 F.2d 615 (9th Cir. 1982), cert. denied sub nom Byrd v. Civil Service Commission of the City and County of San Francisco, 459 U.S. 1217 (1983); Ďavis et al. v. The City and County of San Francisco et al., C-915348 (Superior Court of California for the City and County of San Francisco), Davis challenged a 1983 Consent Decree in San Francisco NAACP et al. v. San Francisco Unified School District, 78-1445-WHO (N.D. Cal. 1983); Fowler et al. v. The City and County of San Francisco et al., No. 915350 (Superior Court of California for the City and County of San Francisco).

11 Bembenek et al. v. Winkle. et al., 3:90 CV-7016 (N.D. Ohio (January 16, 1990)). The Consent Decree at issue was originally entered in 1974 resolving an action filed seventeen years ago. See, Brown v. Neeb, 664 F.2d 551 (N.D. Ohio 1981).

12 The Consent Decree has been modified from time to time by the court with the latest revision being August 21, 1989. Brown v. Winkle, C 72-282 (N.D. Ohio 1989).

nality of judgments. Judges are not free to rewrite the law of judgments nor, in federal courts, can judges fail to observe the rules established by the Federal Rules of Civil Procedure and other applicable statutes. In Wilks, an important underlying issue was a dispute about the meaning of Rules 19 and 24 of the Federal Rules of Civil Procedure governing the circumstances under which mandatory joinder of third parties must occur and when non-parties are obligated to intervene to protect their rights. Until Wilks, most courts of appeals held that all third parties were foreclosed from collaterally attacking consent or litigated decrees, except in very limited circumstances, whether or not they had notice and an opportunity to be heard before the decree was entered.13 Under Wilks, however, every single white firefighter is able to bring a separate lawsuit to challenge the decree, even if the decree had already been approved in multiple prior challenges. The U.S. Supreme Court recognized that Congress had the power to fashion other solutions in this situ

ation.

Section 6 is drafted to accommodate both the policy of finality and the right to be heard. Section 6 requires the person who is potentially aggrieved to challenge the decree before it becomes binding, rather than years later. It also provides interested third parties an opportunity to present the same statutory or constitutional objections to a decree that they could, under Wilks, present years later. Once those objections have been fully aired, there is no reason to permit the same arguments to be made over and over again.

Section 6 also seeks to provide notice to third parties in a variety of ways. As judges know from their experience with Rule 23 governing class action suits, many practical problems can arise in giving notices of this kind that are solved by reasoned discretion of district judges. Section 6 makes clear that it does nothing to disturb Federal Rule 24 concerning the right to intervene, and it does nothing to disturb the usual rules by which collateral attack on judgments is permitted.

Lorance v. AT&T Technologies Inc., 490 U.S. ——, 104 L.Ed.2d 961, 109 S.Ct. (June 12, 1989). Ms. Lorance started work as an hourly wage employee. Later she was promoted to a more highly paid, formerly all-male, skilled position. When she and many other women were moving into these skilled positions for the first time in 1979, the employer adopted a new seniority policy, facially neutral, that, as applied, discriminated against women. The new policy did not affect her until 1982, when her relatively low seniority under the policy caused her to be demoted. She and those employees similarly situated would not have been demoted under the old seniority system. The lower courts held that the 180-day limitations period within which to bring discrimination charges under title VII began to run when Ms. Lorance lost her plant-wide seniority rights under the new system. The U.S. Supreme Court (5-314) reversed, holding that the limitations period began to run as soon as the new system was adopted.

The plurality opinion places intolerable burdens on employees who are victims of discriminatory practices and on an overburdened judicial system as well. It is difficult to understand how employees who have no reason to believe they will suffer any harm from a new promotions or hiring policy can ever successfully challenge a discriminatory system unless the particular employee's harm fortuitously occurs within the limitation period. Moreover, it is extremely difficult to figure out effective remedies for employees who are unable to show that they suffered any harm from a policy that did not apply to them when a challenge is made. The decision requires employees to fight battles when threats are no more than shadows. This decision makes sense only if the purpose of the title VII limitations provision was to cripple or to destroy the statutory rights of those who seek to invoke the statute's protection.

How many women and minority employees who, at last, have found a job, are going to have employment opportunities if they are required by law to fight their employers every time they create a policy that may someday adversely affect them? How many have the financial or the emotional resources to work in an environment that requires constant fighting? How many will challenge those policies when, even if they win, they can lose again and again because Wilks permits white males to reopen the issues indefinitely?

Section 6 of the Act overturns Lorance, and lengthens the time for filing a discrimination complaint. The time for filing a complaint begins to run from the date a discriminatory practice has adversely affected the victim. The Act also recognizes

13 For a summary of the circumstances under which a non-party may collaterally attack a consent or litigated decree before Wilks, see, e.g., F. James & G. Hazzard, Civil Procedure (3d ed. 1985) § 12.15, p. 681.

14 Justice O'Connor did not participate.

the special consideration that Congress extends to seniority plans under title VII 15 and describes the circumstances under which a seniority system, adopted as part of a collective bargaining agreement, may be challenged as an unlawful employment practice.

Independent Federation of Flight Attendants v. Zipes, 491 U.S. -, 105 L.Ed.2d 639, 109 S.Ct. (June 22, 1989). A group of female flight attendants of TWA, represented by their union, filed suit against the airline claiming that the airline's policy of terminating flight attendants who became mothers, but not those who became fathers, violated title VII's prohibition against sex discrimination. TWA then abandoned its policy and entered into a settlement agreement, which was approved by the district court. Following an appeal by class members who were dissatisfied with the settlement, the district court granted summary judgment to the women flight attendants concluding that the policy violated title VII. The airline and the flight attendants again reached a settlement in which the airline agreed to establish a $3 million fund to benefit all class members and to credit class members with full company and union "competitive" seniority from the date of the termina

tion.

At this point, a new union replaced the former union as collective bargaining agent for the flight attendants. The union challenged the settlement on behalf of flight attendants who were not members of the class on the grounds, among others, that full retroactive "competitive seniority" violated the collective bargaining agreement between the members unaffected by the discriminating policy and the airline. The settlement agreement was again approved. The prevailing women attendants' attorneys petitioned the district court for an award of attorneys' fees against the intervening union.

The district court awarded such fees, the court of appeals affirmed, and the U.S. Supreme Court granted review. With a hypertechnical reading of Title VII, the U.S. Supreme Court (5-4) held that no attorneys' fees could be awarded against an unsuccessful intervenor unless the intervenor's action was frivolous, unreasonable, or without foundation. In dissent, Justice Marshall pointed out that the result of the decision will be that defendants can rely on intervenors to raise many of their defenses, thereby limiting the defendants' exposure to attorneys' fees and forcing prevailing plaintiffs to litigate many, if not most of their claims against parties against whom they have no chance of recovering fees, thereby significantly restricting the use of private attorneys general to enforce the law.

Section 9 restores the district court's discretion to award attorneys' fees to the victim of discrimination who prevails in the original action, together with other litigation expenses, reasonably incurred in defending such judgment or order as a party, intervenor or otherwise.

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Patterson v. McLean Credit Union, 491 U.S. --, 109 S.Ct. --, 105 L.Ed.2d 132 (June 15, 1989). Ms. Patterson was employed as a bank teller and was thereafter subject to racial harassment on the job. The firm's president repeatedly told her that "blacks are known to work slower than whites by nature." She was given demeaning tasks that white workers were not. She was the only clerical worker who was required to dust and sweep. She brought this action under the 1866 Civil War Statute (42 U.S.C. § 1981) which prohibits racial discrimination in the making and enforcement of contracts. 16

Ms. Patterson brought the action contending that her employer had harassed her, failed to promote her, and then discharged her because of her race. The district court held that racial harassment is not actionable under § 1981. The court also instructed the jury that in order to prevail on her promotion-discrimination claim, she had to prove that she was better qualified than the white employee who received the promotion. The jury found for the employer, and the court of appeals affirmed. Two important issues were raised before the U.S. Supreme Court. On its own motion, the U.S. Supreme Court ordered the parties to brief the question whether the U.S. Supreme Court should overrule its decision in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) holding that § 1981 prohibits racial discrimination in making and enforcing private contracts. The second issue was raised by Ms. Patterson: is racial harassment on the job a violation of § 1981?

The court unanimously decided that it would not overturn Runyon v. McCrary, and that the district court erred in instructing the jury that Ms. Patterson had to

15 Section 703(h) of Title VII, 42 U.S.C. § 2000e−2(h).

16 Unlike title VII, § 1981 covers all employers and employment contracts, whereas title VII covers only employers with 15 or more employees.

Section 1981 permits recovery of damages against those found in violation of the statute. By contrast, title VII remedies are limited to injunctive or declaratory relief and backpay.

prove that she was better qualified than the white employee who received the promotion in her stead. The majority held that § 1981 applied only to the employment contract and not to harassment after the contract had been formed. The dissenting justices believed that the language of § 1981 was roomy enough to accommodate a sexual harassment claim if the plaintiff was able to demonstrate to the satisfaction of a jury that she worked under conditions substantially different from those enjoyed by white employees similarly situated because a jury could infer from such evidence that the employer did not make the same kind of employment contract with blacks as with whites.

Since Patterson, a number of decisions have been handed down that vividly illustrate the plight of women subjected to sexual harassment for whom neither title VII nor § 1981 provides any relief. For example, in Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989), a 36-year old black female who had been employed as an industrial nurse at the company had been subjected to gross racial and sexual exploitation. Her supervisor displayed illustrations of interracial sexual acts and told her that she was hired to perform the sexual acts depicted. On another occasion, her supervisor threatened to kill her. Brooms fled screaming and suffered a fall down a flight of stairs. She thereupon suffered a severe depression which left her unable to work on a permanent basis for several years. The litigation was pending in the Seventh Circuit when Patterson was decided, and the court of appeals summarily dismissed the complaint on the ground that this conduct did not affect the initial formation of the contract and was therefore not actionable under § 1981.

The need to correct Patterson also helped to focus attention on the need to strengthen title VII to provide adequate remedies to all victims of intentional employment discrimination against protected classes. Under title VII, the most that a proven discrimination victim can expect is reinstatement to her job if she was wrongfully discharged, denied a promotion or not hired in the first place; a court may enjoin her employer to stop discriminating and/or award no more than two years of backpay if she can show that the discrimination caused her to lose wages. Title VII provides no possibility of recovering damages to compensate victims of discrimination for severe health or medical injuries and the emotional distress caused by the mistreatment. Yet, these are precisely the kinds of injuries that are directly traceable to prohibited discrimination, and they occur either in the absence of, or in addition to loss of income.

Men, as well as women, severely suffer from mistreatment. For example, James Williams was subjected to racial slurs, "jokes," and "pranks," such as posting a Klu Klux Klan application on the company bulletin board. Although the trial court found that Williams' employer had violated title VII, the court could not award Williams damages for his emotional distress and psychological problems which resulted from his harassment. Williams v. Atchison, Topeka & Santa Fe Railway, 627 F.Supp. 752 (W.D. Mo. 1986).

Rodney Compston, a millwright, got along very well with his supervisor until he discovered that Compston was Jewish. After that, the supervisor called him "goddamned Jew," "kike," and "Christ Killer" in front of his co-workers. The court stated its regret in being unable to award him damages under title VII because it was apparent from the evidence that Compston suffered mental anguish and humiliation at the defendant's hands. Compston v. Borden. Inc., 424 F.Supp. 157 (S.D. Ohio 1976).

Employees like these are in a "catch-22" situation. If they stay on the job and submit to the abuse, they get no recompense for the harm they sustain. If they are ultimately driven to quitting their jobs, they bear a heavy burden to prove that they were "constructively discharged," and, even if they ultimately prevail, they still have no remedy for the discriminatory conduct except reinstatement in an abusive environment and backpay.

Although under some state tort laws, victims of intentional discrimination may have a remedy, such laws can hardly be viewed as an adequate alternative to a damages remedy under title VII. Invidious employment discrimination is a national problem, and it requires uniform national solutions by federal statute.

Section 12 of the Civil Rights Act of 1990 amends § 1981 by expressly expanding the definition of "the right to 'make and enforce contracts'" to include the performance of and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

As necessary as it is to amend § 1981, it cannot do the entire task. Section 1981 applies only to race and national origin discrimination. Compensatory damages would not be available under that statute to white women or men discriminated against on nonracial or ethnic grounds. Moreover, § 1981 does not contain the desirable conciliation process incorporated into title VII.