HIATT v. CITY OF BERKELEY

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Court of Appeal, First District, Division 2, California.

Rayford R. HIATT et al., Plaintiffs, Respondents and Appellants, v. CITY OF BERKELEY et al., Defendants, Appellants and Respondents.

Civ. 39033.

Decided: January 19, 1979

Michael Lawson, City Atty., Berkeley, Donald P. McCullum, Charles O. Triebel, Jr., Oakland, for defendants, appellants and respondents. Ronald Yank, Christopher D. Burdick, Carroll, Burdick & McDonough, San Francisco, for plaintiffs, respondents and appellants. Allan Yannow, Mark S. Rudy, San Francisco, for amicus curiae on behalf of plaintiffs-respondents; Arnold Forster, Jeffrey Simensky, New York City, of counsel.

Plaintiffs, employees of the Berkeley Fire Department (hereafter respondents), brought this action against the City of Berkeley, its City Council, and certain city officials (hereafter appellants or City of Berkeley), challenging the promotional procedures laid down in the city's Affirmative Action Program (hereafter AAP or Program). Respondents invoked the Fourteenth Amendment of the United States Constitution, article I, section 21 (now s 7) of the California Constitution, 42 United States Code, sections 1983, 2000d, 2000e-2 (Civil Rights Act of 1964), and California Labor Code, section 1420, et seq., claiming that the attacked provisions of AAP set up rigid quotas in hiring and promoting city employees which were based solely on race or sex and therefore violated both the constitutional principles of equal protection of laws and the provisions of the Civil Rights Act of 1964 proscribing discrimination premised on race, color, national origin or sex. After trial, a judgment and permanent injunction were issued in favor of respondents. The appeal is taken from the judgment awarding damages to respondents and enjoining City of Berkeley from enforcement of certain provisions of AAP; the cross-appeal is from a denial of attorney's fees and a refusal to promote two of the respondents.

Background Facts

AAP, the centerpiece of the legal dispute, was adopted by the City of Berkeley in 1972 pursuant to City Council Resolution No. 45,257-N.S., and was amended in 1974 in order to conform to the 1970 census figure. The stated goal of AAP is to achieve and maintain “proportional employment” for all minorities1 in each city department, job classification, and salary category. In the definition of AAP, proportional employment means that “the percentage of each race and sex in the City of Berkeley work force shall be approximately equal to that of the percentage of each race and sex in the Berkeley population as a whole.”

In order to attain the stated goal, AAP introduced a wide ranging, elaborate program which purported to base the city's employment practices solely on race and sex rather that on competitive, free examinations and merit as prescribed by the city Charter (see discussion, infra). Thus, at the very outset the Program declared that “The ‘minimum qualifications' principle shall guide the establishment of job requirements for all City job classifications.” The Program then provided that the personnel department shall use written tests on a nonranking basis only, and the qualification of the applicants shall be determined on the results of oral interviews. The Program made it mandatory that the interview panels include at least one minority person and one woman; while at the same time it precluded the panel members from eliciting information regarding the applicant's test scores, performance appraisals, sick leave record and/or previous disciplinary actions. The Program next provided that the employment lists be restricted to three general categories (“Outstanding,” “Well Qualified,” and “Qualified”), and that the names of the candidates in each qualifying category be listed in alphabetical order rather than according to the actual test scores achieved on the examinations. The Program also ordered that the appointment register (a list of all qualified applicants taken from the employment list) be arranged in order of hiring priorities; that all future vacancies in the city's civil service be filled from the appointment register; that all applicants be interviewed and recommended in order of hiring priorities; and, most importantly, that vacancies in city service be filled on the basis of hiring priorities and underutilization, unless upon the request of the department head a waiver is granted by the city manager.

The most egregious, racially discriminative nature of AAP was demonstrated by the scheme under which the so-called “hiring priorities” and “underutilization”2 were to be determined. For the purpose of achieving the overall policy goal of proportional employment, AAP set up a rigid quota system which worked as follows: First, the Program classified the city population by race and sex. Next, it required that the race and sex of the employees be ascertained within each department, job classification and salary category. As a following step, the percentage of race and sex was to be compared to the population of the City of Berkeley as a whole, as indicated in the census. If the percentage of a particular race or sex in a department, job classification or salary category was below its percentage in the Berkeley population, the group was deemed “underutilized” and became a priority group for hiring and promotion.

The present lawsuit grew out of the application of AAP in filling certain vacancies in the Berkeley fire department. As the record indicates, on or about June 5, 1974, there were four vacancies for the promotional position of fire captain and three for the job title of fire lieutenant. The city had eligibility lists with respect to both job categories. Contrary to the mandate of AAP, the lists were compiled on the basis of competitive examinations and contained a numerical ranking of the candidates based upon their performance in the examinations. The eligibility list for fire captain comprised nine names. Although respondents Hiatt and Rinne ranked higher on the list than Melvin E. Thompson, a minority candidate, Thompson was promoted to fire captain solely because of his race. The very same occurred with regard to the promotion of Clinton Beacham, a minority employee, to the position of fire lieutenant. The record affirmatively shows that despite the fact that Beacham ranked tenth in the group, and respondents Salter, Parks, Jones, Littley, Wolf and Leimone were more qualified and outranked Beacham, he was promoted solely on the basis of his race.

While it appears that a racial imbalance existed in the command structure of the fire department, the evidence introduced at trial indicated, and the superior court so found, that the City of Berkeley had not discriminated in the past on any occasion against any person on the ground of his or her race or sex concerning employment opportunities with the City of Berkeley in general or with its fire department in particular. The record likewise disclosed that the City of Berkeley had adopted AAP in recognition of a “history of discriminatory employment practices throughout all segments of American society” but the Program contained no legislative declaration of past discriminatory conduct on the part of the City of Berkeley itself.

Based upon the foregoing considerations, the trial court Inter alia concluded that the promotions under challenge were made solely on the basis of race, and that lesser qualified persons were appointed to the positions of fire captain and fire lieutenant pursuant to the directives of AAP. The court also held that certain provisions of AAP directing or facilitating employee appointments or promotions on the sole basis of race or sex, rather than on merit, were unduly discriminatory and therefore violative of the constitutional and statutory provisions proscribing racial and sexual discrimination.3 In accordance therewith, the trial court enjoined appellants: (1) from promoting any person except on the basis of eligibility lists established by open, competitive examination which shall reflect the scores achieved by the candidate on both the written and oral examinations as prescribed by city Charter, article XVI, section 119; (2) from denying promotion to any person on the grounds of race, color, sex, national origin or ancestry or from granting any applicant for promotion any preference or advantage on the aforestated bases; and (3) from adopting or implementing any personnel policy or system which fails to promote candidates on the basis of open, competitive and free examinations uniformly and fairly administered to each candidate.

The Appeal

Although appellants raise various issues on appeal, the central question before us is whether in the factual setting here presented the employment practices outlined in AAP which discriminate against the white majority purely on the basis of race are permissible or justifiable under the federal or California Constitutions and/or the Civil Rights Act of 1964. In resolving this sensitive and highly controversial dispute, we discuss the issues on both constitutional and statutory grounds.

(a) Constitutional Analysis: At the outset we emphasize that while both the Fourteenth Amendment of the United States Constitution and the equal protection clause of the California Constitution, which was patterned after and “ ‘substantially the equivalent’ ” of the language of the Fourteenth Amendment (Serrano v. Priest (1971) 5 Cal.3d 584, 596, fn. 11, 96 Cal.Rptr. 601, 487 P.2d 1241; McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 140 Cal.Rptr. 168), accord any person the equal protection of the laws in plain and unequivocal language and without qualification,4 it is well settled that different classifications of citizens, including classification by race, is not Per se illegal, much less unconstitutional.

In order to test the validity of a classification, the courts apply a two-tiered system of analysis. Thus, it has been said that classifications made by government regulations are valid “if any state of facts reasonably may be conceived” in their justification (McGowan v. Maryland (1961) 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393). This yardstick, generally called the “reasonable basis” test, is used in a variety of contexts to determine the validity of the government action (Village of Belle Terre v. Boraas (1974) 416 U.S. 1, 8, 94 S.Ct. 1536, 39 L.Ed.2d 797; Dandridge v. Williams (1970) 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491). However, in certain circumstances a more stringent standard is imposed. Most notably, where the classification is based solely on the basis of race or sex, it is regarded as a Suspect classification which is subject to strict judicial scrutiny (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 101 Cal.Rptr. 896, 496 P.2d 1264; Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529; People v. Rappard (1972) 28 Cal.App.3d 302, 104 Cal.Rptr. 535). This principle has recently been reaffirmed in Regents of University of California v. Bakke (1978) 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750, a reverse discrimination case, where the United States Supreme Court emphatically pointed out that distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality (Loving v. Virginia (1967) 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Hirabayashi v. United States (1943) 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774), and held that “Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” (Regents of University of California v. Bakke, supra, 438 U.S. p. ——, 98 S.Ct. p. 2749.) It follows that in the event the government classifies citizens with regard to employment opportunities by virtue of their race, the legislation may be upheld only if it (1) is justified by a Compelling state interest, and (2) is Necessary for the furtherance of that compelling state interest (Weber v. City Council (1973) 9 Cal.3d 950, 959, 109 Cal.Rptr. 553, 513 P.2d 601; Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487; McLaughlin v. Florida (1964) 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222). Or as the California Supreme Court put it in Bakke v. Regents of University of California (1976) 18 Cal.3d 34, 49, 132 Cal.Rptr. 680, 690, 553 P.2d 1152, 1162 (overruled in part in Regents of University of California v. Bakke, supra, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750), “In the case of such a racial classification, not only must the purpose of the classification serve a ‘compelling state interest,’ but it must be demonstrated by rigid scrutiny that there are No reasonable ways to achieve the state's goals by means which impose a lesser limitation on the rights of the group disadvantaged by the classification. The burden in both respects is upon the government.” (Emphasis added.)

In the case at bench the record clearly supports the trial court's finding that the classifications in AAP were based solely on the basis of race and sex. As a consequence, they are subject to strict judicial scrutiny. At the same time it appears that appellants failed to carry their burden of proving: that the racial classifications contained in AAP were warranted by a compelling governmental interest; that the measures taken were necessary to implement the latter interest; and/or that the means to achieve the stated policy goal were so designed as to impose the least limitation on the rights of the affected majority.

To begin with, the record is notable for a complete lack of showing that the ultimate goal of AAP, namely, the attainment of proportional racial employment in the city work force in general and the work force of the fire department in particular, was compelled by, or was even reasonably related to, any legitimate legislative end, e. g., the enhancement of the employee's ability to perform his or her duty in a productive manner; or a greater efficiency of the work force as a whole by virtue of its racial restructuring; or establishment of a better rapport with minority persons in the community. Indeed, it stretches any imagination to assume or imply that a firefighter is better suited to his job just because he or she belongs to a certain race or sex or that a minority citizen would prefer a minority fireman to put out a fire at his or her house or that a minority employee of the fire department would, of necessity, establish better rapport with minority communities. These assumptions are negated, not only by the contrary findings of the trial court,5 but also by the California Supreme Court which made the following observation in Bakke v. Regents of University of California, supra 18 Cal.3d at page 53, 132 Cal.Rptr. at page 693, 553 P.2d at page 1163: “We reject the University's assertion that the special admission program may be justified as compelling on the ground that minorities would have more rapport with doctors of their own race and that black doctors would have a greater interest in treating diseases prevalent among blacks. The record contains no evidence to justify the parochialism implicit in the latter assertion; and as to the former, we cite as eloquent refutation to racial exclusivity the comment of Justice Douglas in his dissenting opinion in De Funis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164: ‘The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans . . . .’ (416 U.S. at p. 342 (94 S.Ct. 1704, 40 L.Ed.2d at p. 183).)”

But in addition, the Program must be held constitutionally infirm for the further reason that it fails to meet the second element of the strict scrutiny test in two important respects. One, in full harmony with the trial court's findings,6 the record affirmatively shows that the establishment of an inflexible, 100 percent racial quota system in AAP was not necessary to achieve the policy goal of proportional employment (assuming Arguendo that such goal was acceptable), and that workable alternative methods were available and existed in carrying out the objective. Thus, it appears that prior to the passage of the Program, the City of Berkeley conducted extensive recruiting and education to increase the percentage of minority applicants in the fire department. Larry Williams, personnel director and affirmative action officer, testified that such program was quite successful and that the proportion of minority firefighter applicants dramatically rose from about 50 out of 1,000 in the mid-1960's, to about 150 out of 350-400 immediately prior to the passage of AAP, which corresponds to an increase from 5 percent to over 30 percent in the surveyed period. Mr. Williams' testimony was corroborated by Councilman Sweeney, who restated that as a result of the city's vigorous efforts and education there was considerable success in recruiting minority applicants to the fire department prior to the adoption of AAP.

Two, as will be detailed below, the quota system employed in AAP purported to exclude from new hirings and promotional positions not only a certain number of the majority race, but the white class as a whole, at least until the projected minority quotas were filled in the workforce of the city. Needless to say, the rigid quota system thus conjured cannot be regarded as a means imposing a lesser or the least limitation possible upon the group disadvantaged by the classification, as envisaged by the case law (Dunn v. Blumstein (1972) 405 U.S. 330, 342-343, 92 S.Ct. 995, 31 L.Ed.2d 274; Loving v. Virginia, supra, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010; McLaughlin v. Florida, supra, 379 U.S. 184, 192-193, 85 S.Ct. 283, 13 L.Ed.2d 222; Bakke v. Regents of University of California, supra, 18 Cal.3d 34, 49, 132 Cal.Rptr. 680, 553 P.2d 1152).

Appellants nonetheless insist that the racial quotas here challenged should pass constitutional muster because (a) a “racial imbalance” existed in the command structure of the fire department, and (b) the discrimination in favor of ethnic minorities and women was “benign,” aimed at redressing past injustices and prior unequal treatment. We are unable to agree with either of these propositions.

In adverting to the first question, we note that even before the United States Supreme Court decision in Bakke, the case law was settled that under an equal protection analysis an adverse statistical impact (or “racial imbalance” as appellants call it) alone did not establish a prima facie case of unconstitutional employment discrimination. Under well recognized rules, in order to trigger the equal protection clause, it was necessary to prove not only that as a matter of past history of discrimination the racial minorities were disproportionately represented in employment, but also that the discrimination in the past had been intentional or purposeful (Washington v. Davis (1976) 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597; Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Blake v. City of Los Angeles (D.C.1977) 435 F.Supp. 55). As the United States Supreme Court stated it in Washington v. Davis, “The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. . . . But Our cases have not embraced the proposition that a law or other Official act, without regard to whether it reflects A racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.” (426 U.S. p. 239, 96 S.Ct. p. 2047, emphasis partially added.) “(W)e have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, Is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.” (P. 242, 96 S.Ct. p. 2049, emphasis added.) This principle laid down in Washington v. Davis gained renewed acceptance in Bakke, where in commenting on the validity of discriminatory employment practices the United States Supreme Court pointed out that racial preferences can be justified only when the legislative or administrative body has made determinations of past discrimination or when there have been findings of constitutional or statutory violations (Regents of University of California v. Bakke, supra, 438 U.S. at p. ——, 98 S.Ct. 2733). (See discussion, infra.)

By contrast, the instant record contains no legislative or administrative declaration as to past employment discrimination with the City of Berkeley, and denotes only that AAP was enacted in response to a history of discriminatory employment practices in the American society as a whole. In addition, there is positive evidence negating the assumption that the City of Berkeley has ever discriminated against minorities with respect to employment opportunities. For example, Mr. Williams, affirmative action officer, testified that he knew of no occasions in the past where appellants had discriminated against any person with regard to employment with the city. Former Fire Chief Robert Kearney also observed no racial discrimination in the fire department throughout his long, 30-year tenure. Fire Chief Victor Porter, who had served in the Berkeley fire department for over 14 years, was also called as an adverse witness and testified that he did not know of any instance when the fire department had discriminated against minorities with regard to hirings or promotions. Moreover, the finding of the trial court that the City of Berkeley, its agents, employees and officers have not discriminated in the past on any occasion against any person by virtue of the person's race or sex with regard to employment opportunities with the City of Berkeley in general or its fire department in particular, is supported not only by sufficient evidence, but also by the decision rendered by the federal court in Brunetti v. City of Berkeley (N.D.Cal.1975) H C-74-0051 RFP.7 In Brunetti, which, similar to the case at bench, involved reverse discrimination in promotions in the Berkeley fire department, the federal court found that there had been no prior discriminatory employment practices and that the affirmative action program by the city had not been launched to rectify past discrimination in the municipal workforce.

Appellants' second contention that the discrimination at hand does not violate the constitutional precept of equal protection because it was “benign,” is neither meritorious nor novel. The same argument was raised in Bakke and rejected by the majority of the United States Supreme Court, as follows: “Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white ‘majority’ cannot be suspect if its purpose can be characterized as ‘benign.’ The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra (347 U.S. 483), at 492, 74 S.Ct. 686, 98 L.Ed. 873; accord, Loving v. Virginia, supra, 388 U.S. at 9, 87 S.Ct. 1817. It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” (—- U.S. at p. ——, 98 S.Ct. at p. 2750; emphasis partially added.)

In elaborating on the reasons why “benign” discrimination may not be accepted, the majority of the Supreme Court advanced three major considerations: “First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of particular groups in order to advance the group's general interest. See United Jewish Organizations v. Carey, 430 U.S. 144, 172-173, 97 S.Ct. 996, 51 L.Ed.2d 229 (Brennan, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U.S. 312, 343, 94 S.Ct. 1704, 40 L.Ed.2d 164 (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making.” (—- U.S. at p. ——, 98 S.Ct. at p. 2753.)

Finally, we find it of singular importance that in rejecting the notion of “benign” discrimination the majority of the Supreme Court cited with approval Professor Bickel's comment on the self-contradictory nature of reverse discrimination: “ ‘The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and We are told that this is not a matter of fundamental principle but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution.’ A. Bickel, The Morality of Consent 133 (1975).” (Regents of University of California v. Bakke, supra, —- U.S. p. ——, fn. 35, 98 S.Ct. p. 2751; emphasis added.)

(b) Statutory Grounds: Appellants' second major argument is that even if they cannot prevail upon equal protection grounds, the existing racial imbalance, however caused, justified the preferential treatment of racial minorities under Title VII of the Civil Rights Act of 1964 as amended in 1972 (42 U.S.C., s 2000e et seq.). In so arguing, appellants' primary reliance is placed on Griggs v. Duke Power Co. (1971) 401 U.S. 424, 428-430, 91 S.Ct. 849, 28 L.Ed.2d 158, which indicated that in a Title VII review a more probing judicial inquiry is required than under the equal protection clause, and when hiring practices result in a substantial disproportion of minority employees, the disproportionate impact alone establishes a prima facie case of racial discrimination without proving any discriminatory purpose. Appellants also cite federal and state cases which upheld voluntary quotas directed at redressing existing racial imbalances in the employer's workforce (e. g., Afro American Patrolmens League v. Duck (6th Cir. 1974) 503 F.2d 294; NAACP v. Allen (5th Cir. 1974) 493 F.2d 614; Morrow v. Crisler (5th Cir. 1974) 491 F.2d 1053; Associated Gen. Contractors of Mass., Inc. v. Altshuler (1st Cir. 1973) 490 F.2d 9; Castro v. Beecher (1st Cir. 1972) 459 F.2d 725; Germann v. Kipp (W.D.Mo.1977) 429 F.Supp. 1323; Lindsay v. City of Seattle (1976) 86 Wash.2d 698, 548 P.2d 320). Appellants' argument premised on Title VII of the Civil Rights Act must fail for a variety of considerations.

To begin with, a compelling argument may be made that the scope of review under Title VII cannot be broader than under the Fourteenth Amendment. In Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 456-457, 96 S.Ct. 2666, 49 L.Ed.2d 614, the Supreme Court held that the authority for the 1972 amendment extending Title VII to state and local governments was the Fourteenth Amendment to the United States Constitution. Therefore, it is simple logic and common sense that the statute cannot be broader than the constitutional authority upon which it is based. It follows that in Title VII cases against a state or local government the statute is to be construed in accordance with the constitutional test adopted in Washington v. Davis, supra, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, i. e., there must be proof of discriminatory racial purpose (cf. Blake v. City of Los Angeles, supra, 435 F.Supp. 55; Scott v. City of Anniston (N.D.Ala.1977) 430 F.Supp. 508). This reasoning also finds support in the recent Bakke case where the Supreme Court held that Title VI of the same Civil Rights Act is coextensive with the Fourteenth Amendment and proscribes only those racial classifications that would violate the equal protection clause or the Fifth Amendment (—- U.S. ——, 98 S.Ct. 2733).

Second, even if assumed Arguendo, that the judicial scrutiny under Title VII is somehow not commensurate with the Fourteenth Amendment, there are additional reasons why the redress of unintentionally caused racial imbalance is not required under Title VII. By its simple reading, Title VII proscribes employment discrimination based on race, color, religion, sex or national origin in unconditional language and without any qualification (42 U.S.C., s 2000e-2, subd. (a)). Addressing the very problem that is before us, section 703, subdivision (j), of the Civil Rights Act (42 U.S.C., s 2000e-2, subd. (j)) provides in equally clear and explicit terms that racial preferences are not required to be granted to any employee or group of employees on account of racial imbalance either.8

Third, the legislative history of section 703, subdivision (j), reveals complete harmony between the plain, unmistakable congressional language and the congressional intent. The background facts disclose that the bill which became the Civil Rights Act of 1964 originated in the House of Representatives as H.R. No. 7152. As reported to the House, it did not contain section 703, subdivision (j) (see H.R. No. 914, 1964 U.S.Code Cong. & Admin.News, pp. 2355, 2391, 2401-2409). The bill received heated opposition, its opponents expressing the fear that it would impose on unions and employers a federally administered racial quota system. (See generally, EEOC, Legislative History of Titles VII and XI, Civil Rights Act of 1964.) When the bill reached the Senate, Senators Clark and Case, its floor managers, filed a report declaring: “There is no requirement in title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, Would involve a violation of title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race. (P) (The employer ) Would not be obliged or indeed, permitted To fire whites in order to hire Negroes, or To prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority Rights at the expense of the white workers hired earlier . . . .” (Interpretive Memorandum on Title VII of H.R. No. 7152, submitted jointly by Senators Clark and Case, floor managers, 110 Cong.Rec. 7213, Apr. 8, 1964; EEOC Legislative History, supra, p. 3043; emphasis added.)

In response to the objections of opponents, Senator Clark filed a series of responses to these objections, among them the following: “Objection: The bill would require employers to establish quotas for nonwhites in proportion to the percentage of nonwhites in the labor market area. (P) Answer: Quotas are themselves discriminatory.” (EEOC, Legislative History, supra, p. 3015.)

A series of amendments, the so-called Dirksen-Mansfield substitute (which was ultimately adopted by both houses of the Congress), was then framed by supporters of the bill. In order to allay fears of racial preference hiring, the present text of section 703, subdivision (j), was added to the bill. One of its draftsmen, Senator Humphrey, explained its purpose: “A new subsection 703(j) is added to deal with the problem of racial balance among employees. The proponents of this bill have carefully stated on numerous occasions that title VII does not require an employer to achieve any sort of racial balance in his work force by giving preferential treatment to any individual or group. Since doubts have persisted, subsection (j) is added to state this point expressly.” (Remarks of Senator Humphrey, 110 Cong.Rec. 12723, June 4, 1964; EEOC Legislative History, supra, p. 3005; emphasis added.)

In addition, the legislative history clearly reflects that Title VII was intended to “cover white men and white women and all Americans,” (Remarks of Rep. Celler, 110 Cong.Rec. 2578 (1964)), and to create an “obligation not to discriminate against whites.” (Id., at p. 7218 (memorandum of Senator Clark. See also memorandum of Senators Clark and Case, id., at p. 7213, and remarks of Senator Williams, id., at p. 8912.)

Fourth, the Equal Employment Opportunity Commission (EEOC) whose interpretations are entitled to great deference (Griggs v. Duke Power Co., supra, 401 U.S. at pp. 433-434, 91 S.Ct. 849) has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would “constitute a derogation of the Commission's Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians” (EEOC Decision No. 74-31, 7 FEP 1326, 1328, CCH EEOC Decisions, P 6404, p. 4084 (1973)).

Fifth, United States Supreme Court cases preceding Bakke also gave the interpretation that Title VII prohibits racial discrimination against any race, including whites. Thus, in McDonald v. Santa Fe Trail Transp. Co. (1976) 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493, the court concluded that white employees were entitled to relief when the employer dismissed them for misbehavior, but retained a similarly situated black employee. Speaking for a unanimous court, Justice Marshall emphasized that Title VII is not limited to discrimination against members of any particular race, and that it prohibits discriminatory preferences for any racial group, minority or majority. In relying on the legislative history and the EEOC interpretation of Title VII, the Supreme Court held that “Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.” (427 U.S. at pp. 279-280, 96 S.Ct. at p. 2579.) In Trans World Airlines, Inc. v. Hardison (1977) 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113, the Supreme Court again reaffirmed its earlier statement that the purpose of Title VII was to insure that similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex or national origin, and concluded that “The emphasis of both the language and the legislative history of the statute is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin. This is true regardless of whether the discrimination is directed against majorities or minorities.” (432 U.S. p. 71, 97 S.Ct. p. 2270; see also to the same effect Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147.)

We note in passing that Griggs v. Duke Power Co., supra, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, supports rather than negates or contradicts the principles enunciated in the foregoing cases. While observing that under the Civil Rights Act practices, procedures or tests neutral on their face cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices, the court in Griggs repeatedly underlined that the very purpose of Title VII is to promote hiring on the basis of job qualifications and to eliminate discriminatory preferences based on race or sex with respect to any group, majority or minority. As the court put it, “Title VII ‘expressly protects the employer's right to insist that any prospective applicant, Negro or white, Must meet the applicable job qualifications. Indeed, The very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.’ ” (P. 434, 91 S.Ct. p. 855, emphasis partially added.) And, “the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” (Pp. 430-431, 91 S.Ct. p. 853, emphasis added.)

Finally, Bakke has provided invaluable guidelines with respect to the determination of the issue before us. On closer analysis, it appears that the reasoning and holding of Bakke is of crucial significance in the present adjudication, in at least three respects.

One, in commenting on the employment discrimination cases, the Supreme Court made it emphatic that preferential treatment of racial minorities is permissible only if: there were prior constitutional or statutory violations resulting in discrimination; the injury to the individual or group belonging to the racial minority is identified or identifiable; and the remedy designed to cure past discrimination is not directed against innocent victims. As the court expressed it, “The courts of appeals have fashioned various types of Racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. (Citations.) Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. (Citations.)” (—- U.S. p. ——, 98 S.Ct. p. 2754, emphasis added.)

“We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. See, e. g., Teamsters v. United States, 431 U.S. 324, 367-376, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United Jewish Organizations, 430 U.S., at 155-156, 97 S.Ct. 996; South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). . . . Without such findings of constitutional or statutory violations, it cannot be said that the government has any greater interest in helping one individual than in refraining from harming another.” (—- U.S. pp. —— - ——, 98 S.Ct. p. 2757, emphasis added.) As reiterated before, in the case at bench there were no findings of statutory or constitutional violations on the part of the employer and the promotion of the minority employees in question took place at the expense of innocent individuals who could not be faulted for the racial imbalance developed in the city's workforce as a matter of past history.

Two, the Supreme Court explicitly left the application of remedial measures with the Congress by stating that “we are not here presented with an occasion to review legislation by Congress pursuant to its powers under s 2 of the Thirteenth Amendment and s 5 of the Fourteenth Amendment to remedy the effects of prior discrimination. Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). We have previously recognized the special competence of Congress to make findings with respect to the effects of identified past discrimination and its discretionary authority to take appropriate remedial measures.” (—- U.S. at p. ——, fn. 41, 98 S.Ct. at p. 2755; emphasis added.) By enacting the 1964 Civil Rights Act, the Congress has provided for a great variety of remedies in order to cure the past effects of racial discrimination and secure equal employment opportunities for every race, including minorities. However, as amplified before, the Congress clearly did not intend to accord preferential treatment to racial minorities for the purpose of achieving any sort of racial balance, especially where, as here, the disproportion in the workforce was caused unintentionally without deliberate acts to discriminate against minorities.

Three, while Bakke primarily dealt with reverse discrimination effected under Title VI of the Civil Rights Act, and its holding was pronounced in that context, it is all but obvious that both the conclusion reached in Bakke and its underlying rationale transgress the boundaries of the particular case and lay a new foundation for future adjudications of reverse discrimination cases in general. Stated in a nutshell, the pivotal tenet of Bakke is that although race may be taken into account as one of the numerous factors in determining the validity of the preferential treatment accorded to ethnic minorities, inflexible, rigid quotas based solely upon race are invalid and totally forbidden by law.9 The rationale of this holding is rooted in well-engrained, oft-repeated constitutional principles which underscore that the equal protection of laws was framed in universal terms, without reference to color or ethnic origin (Slaughter House Cases (1872) 83 U.S. (16 Wallace) 36, 71, 21 L.Ed. 394); that the guarantees of equal protection “are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality” (Yick Wo v. Hopkins (1886) 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220); and that as a consequence “(t)he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” (Regents of University of California v. Bakke, supra, pp. U.S. at 2733 - ——, 98 S.Ct. at p. 2748.)

The case at bench clearly and unmistakably falls within the general prohibition outlined in Bakke. As spelled out before, AAP sets up a rigid, unyielding quota system under which not only a certain percentage of the majority employees but the whole class is precluded from employment and/or promotion until the designed racial proportional employment in the fire department has been achieved. Unlike Bakke, where only 16 percent of seats were set aside for admission of ethnic minorities to the Davis Medical School, in the case at bench the exclusion of white males from employment opportunities is total and absolute unless the city manager in his unfettered discretion grants a waiver to an eligible white employee. The rigidity and unyielding nature of the quota system manifests itself especially by the fact that pursuant to the provisions of AAP the eligible majority employees appearing on the employment list are not necessarily selected for employment or promotion even if all the minority candidates on the list have been selected. In such an instance the affirmative action officer may recommend to the city manager the reopening of recruitment and the placement of newly recruited minority applicants on the employment list with absolute hiring priority above and over the eligible white employees already on the list. In short, since the discrimination here presented is more grievous and extensive than that shown in Bakke, both the holding and rationale of Bakke must equally obtain here, and the quota system of AAP which is based solely on race and sex must be stricken as violating not only the Fourteenth Amendment, but also Title VII of the Civil Rights Act.

In light of the overwhelming weight of the cited authorities, appellants' remaining contentions do not call for a lengthy discussion. The argument, that even if section 703, subdivision (j), of the Civil Rights Act (42 U.S.C., s 2000e-2, subd. (j)) does not require the employer to redress the racial imbalance, an affirmative action to do the same is permissible if done on a Voluntary basis (Germann v. Kipp, supra, 429 F.Supp. 1323; Lindsay v. City of Seattle, supra, 86 Wash.2d 698, 548 P.2d 320), may be briefly disposed of. As observed in Bakke v. Regents of University of California, supra, 18 Cal.3d 34, 59, 132 Cal.Rptr. 680, 553 P.2d 1152, the principle of unlawful reverse discrimination would apply whether the racial preference was compelled by the court or voluntarily initiated by the employer, because to the victim of the racial discrimination the result is not noticeably different in either case. Moreover, as mentioned before, the legislative history of Title VII makes it eminently clear that the elimination of racial balance at the expense of eligible majority employees is not only not required, but indeed not permitted because to do so would force the employer to hire or fire employees on the basis of race. With respect to those cases upholding voluntary affirmative action programs for the purpose of redressing racial imbalance, suffice to say that the recent United States Supreme Court cases (McDonald v. Santa Fe Trail Transp. Co., supra, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493; Trans World Airlines, Inc. v. Hardison, supra, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113; Alexander v. Gardner-Denver Co., supra, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147; and especially Regents of University of California v. Bakke, supra, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750) sharply undercut, if not outrightly override them. In light of this new development of law, the continued validity and precedential value of the earlier cases are highly questionable, to say the least.

Appellants' additional claim that in the case at bench no racial discrimination took place, because the grouping of all eligible employees into three qualifying categories and listing of the candidates in alphabetical order, cannot stand in the light of the hiring priority provision of the AAP, already held illegal, which was an integral part of this process. However, no rule of law requires that appellants afford determinative weight to the quantitative factors of test scores or grades where the AAP's hiring priority policy based on “underutilization” has been eliminated. Nor does Berkeley City Charter, section 119, require a different finding. Thus, those portions of the trial court's decision enjoining the provision of paragraph III of the AAP on the use of written tests, and paragraph V regarding employment list qualifying categories, must be reversed.

Lastly, in answering appellants' remaining contention that the appointments in dispute were no more than mere exercise of the city manager's discretionary power accorded by the Charter (city Charter, art. VII, s 28), we briefly note that the discretionary power of the city manager is to be exercised within the framework of AAP which, as discussed at length before, is violative of the city Charter, the equal protection clause of the Fourteenth Amendment and the provisions of Title VII of the Civil Rights Act of 1964.

The Cross-Appeal

The cross-appeal is taken from that portion of the judgment which refuses to promote two respondents, Messrs. Rinne and Jones, to the position of fire captain and fire lieutenant, respectively, and from the denial of attorney's fees to respondents.

The factual background giving rise to the respondents' cross-appeal reveal that the case at bench was tried on a bifurcated basis. The first phase addressed the constitutionality of AAP and called for enjoining appellants from the enforcement of the constitutionally infirm provisions of AAP. After the trial court filed its intended memorandum decision on February 13, 1975, holding that AAP was unconstitutional and illegal upon its face and enjoining appellants from proceeding under the illegal Program, the liability portion of the case went on trial on March 17, 1975. At the conclusion of the second phase, the lower court found that respondents Hiatt, Salter and Parks, who had been in the meanwhile promoted, were entitled to damages by reason of delay in their promotion. As far as respondents Rinne and Jones were concerned, the trial court concluded that they had no just claim to promotion, due to the fact that there had been no additional vacancies in the fire department, and as a consequence the city manager could not exercise his discretion. In relying on Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, the trial court at the same time denied respondents' motion for awarding them attorney's fees. Respondents now argue that the ruling of the trial court was erroneous in both respects.

In addressing the first issue, we agree with the trial court that respondents Rinne and Jones were not entitled to promotion. As appears in the record, the promotion of these respondents was raised in a supplemental pleading praying for writ of mandamus or “mandatory injunction.” It is well settled that while mandate is an appropriate remedy by which to compel the exercise of discretion by a court or governmental officer or an agency (Code Civ.Proc., s 1085; Anderson v. Phillips (1975) 13 Cal.3d 733, 736, 119 Cal.Rptr. 879, 532 P.2d 1247; Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579, 114 Cal.Rptr. 106, 522 P.2d 666), this remedy cannot be utilized to compel the exercise of discretion in a particular manner or to reach a particular result (Hollman v. Warren (1948) 32 Cal.2d 351, 355, 196 P.2d 562; Carter v. Com. on Qualifications, etc. (1939) 14 Cal.2d 179, 181, 93 P.2d 140; Palmer v. Fox (1953) 118 Cal.App.2d 453, 456, 258 P.2d 30; 5 Witkin, Cal.Procedure (2d ed. 1971), s 76, p. 3852). Simultaneously, the record shows that the city Charter accorded discretion to the city manager in the appointment, discipline and removal of city employees subject to the civil service provisions of the Charter.10 Since the ordering of the promotion of respondents Rinne and Jones would have been equivalent to mandating the exercise of discretion in a particular manner, and since there were no vacancies to be filled in the fire department, the trial court's refusal to issue a writ of mandamus was proper.

However, respondents' claim that they should have been awarded attorney's fees is well taken. Code of Civil Procedure, section 1021, provides in part that “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counsellors at law is left to the agreement, express or implied, of the parties . . . .” A literal reading of section 1021 indicates that attorney's fees must be predicated either on a statute or the agreement of the parties.

As amplified earlier, the instant case is predicated on the equal protection clause of the Constitution and Title VII of the Civil Rights Act of 1964, a federal statute which under well established law is governing in cases involving employment discrimination by state and local government as well (42 U.S.C., s 2000e-2; Monell v. Dept. of Soc. Serv. of City of New York (2d Cir. 1976) 532 F.2d 259, 261). Title VII, in turn, expressly authorizes the award of attorney's fees if the action has been brought under subchapter VI (Equal Employment Opportunities; 42 U.S.C., ss 2000e through 2000e-17) of Title VII.11 Since the federal statute is applicable to the state proceedings of the type here involved, and since the federal enactment expressly provides for attorney's fees, the requirement of Code of Civil Procedure, section 1021, that the award of attorney's fees must be founded on statute has been fully met. As a consequence, the trial court should have exercised its discretion to determine the propriety and the amount of attorney's fees to be awarded to respondents.

Alyeska Pipeline Co. v. Wilderness Society, supra, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, corroborates, rather than negates, our conclusion here reached. In pointing out that the statute serves as a separate and distinct basis for awarding attorney's fees the court in Alyeska stated, “What Congress has done, however, . . . is to make specific and explicit provisions for the allowance of attorneys' fees under selected statutes granting or protecting various federal rights. These statutory allowances are now available in a variety of circumstances . . . .” (Pp. 260-261, 95 S.Ct. p. 1623; emphasis added.) In enumerating these special statutes, the court made special mention of the Civil Rights Act of 1964 by noting, “Other statutory examples of discretion in awarding attorneys' fees are the Securities Act of 1933, 15 U.S.C. s 77k(e); The Trust Endenture Act, 15 U.S.C. s 77www(a); the Securities Exchange Act of 1934, 15 U.S.C. ss 78i(e), 78r(a); the Civil Rights Act of 1964, Tit. VII, 42 U.S.C. s 2000(e)-5(k) . . .” (pp. 261-262, fn. 35, 95 S.Ct. p. 1624; emphasis added).

In light of our conclusion, it is unnecessary to decide whether the trial court could have awarded attorney's fees also under the “substantial benefit” doctrine (Serrano v. Priest (1977) 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303) or by utilization of the “private attorney general” theory (Alyeska Pipeline Co. v. Wilderness Society, supra).

The judgment, insofar as it fails to make an award of attorney's fees to respondents, is reversed with directions to the trial court to conduct further proceedings to determine the amount of such fees and to enter judgment therefor. Those portions of the judgment enjoining that part of paragraph III of AAP pertaining to the use of written tests, and the whole of paragraph V of AAP regarding employment list qualifying categories are reversed. In all other respects the judgment is affirmed. Respondents to recover costs.

FOOTNOTES

1.  Pursuant to the Program, “minorities” include Asian, Black, Spanish, American Indian and other nonwhite persons of both sexes, and white females.

2.  AAP defines “underutilization” as having fewer minorities and women in a particular department, job classification or salary category than would be reasonably expected by their availability and representation in the Berkeley population.“Hiring priority” is defined as that category of applicants which will receive emphasis in hiring, promotion, or transfer as determined by the most critical departmental and/or city-wide underutilization.

3.  AAP provisions found unconstitutional by the court are as follows: (a) the “proportional employment” directives contained in the Program, especially the “Goals and Timetables” which set forth the percentage of the Berkeley population by race and sex and mandate parity in the workforce; (b) the provisions that written tests be used on a nonranking basis; (c) the employment list policy which purports to emasculate the determination of ranking on an objective basis and puts the candidates in three large categories in alphabetical order; (d) the hiring priority policy based upon the concept of “underutilization” of workforce; (e) the selection and “waiver” procedure which gives an absolute priority to the minorities in hiring, promotion, etc., unless a “waiver” is granted to eligible white males.

4.  Section 1 of the Fourteenth Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor Deny to any person within its jurisdiction The equal protection of the laws.” (Emphasis added.)California Constitution, article I, section 7, sets out that “(a) A person may not be deprived of life, liberty, or property without due process of law or Denied equal protection of the laws. (P) (b) A citizen or class of citizens may not be granted privileges or immunities Not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.” (Emphasis added.)

5.  The pertinent findings read as follows:“32. Proportional representation by race of the workforce of the CITY OF BERKELEY, or of any department thereof, including its Fire Department, is entirely unrelated to the efficiency of such workforce or department and is entirely unrelated to the services provided by such workforce or department. . . . Further, proportional composition by race of the workforce of the CITY OF BERKELEY, or of any department thereof, including the Fire Department, is entirely unrelated to any other goal or legislative end for which that workforce or department is retained, established or designed.“33. Proportional representation by sex of the workforce of the CITY OF BERKELEY, or of any department thereof, including its Fire Department, is entirely unrelated to the efficiency of such workforce or department, and is entirely unrelated to the services provided by such workforce or department. Further, proportional composition by sex of the workforce of the CITY OF BERKELEY, or of any department thereof, including the Fire Department, is entirely unrelated to any other goal or legislative end for which that workforce or department is retained, established or designed.“34. The race of an employee of the CITY OF BERKELEY in any department, including the Fire Department, is entirely unrelated to that employee's ability to perform his or her duties in a proper, efficient, and productive manner.“35. The sex of an employee of the CITY OF BERKELEY and any department, including the Fire Department, is entirely unrelated to that employee's ability to perform his or her duties in a proper, efficient, and productive manner.“36. The race of a particular employee in the CITY OF BERKELEY is unrelated to that employee's ability to establish rapport with minority persons in the community.”

6.  The relevant court findings are as follows:“39. Procedures employed by the CITY OF BERKELEY prior to adoption of the AAP operated such as to substantially increase the proportions of minority persons holding supervisory or promotional positions in employment in the CITY OF BERKELEY.“40. Procedures employed by the CITY OF BERKELEY prior to adoption of the AAP operated in a manner to substantially increase the percentage of women in supervisory or promotional positions in employment in the CITY OF BERKELEY workforce.“41. Alternate methods exist to increase the proportion of minorities and of women in supervisory or managerial positions in the CITY OF BERKELEY workforce, including in its Fire Department.”

7.  Although an unpublished opinion, Brunetti was cited in Bakke v. Regents of University of California, supra, 18 Cal.3d at pages 58-59, 132 Cal.Rptr. 680, 553 P.2d 1152. In addition, we have taken judicial notice of Brunetti pursuant to Evidence Code, section 452, subdivision (d).

8.  42 United States Code, section 2000e-2, subdivision (a) provides that “It shall be an unlawful employment practice for an employer“(1) To fail or refuse to hire or to discharge any individual, or otherwise to Discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or“(2) To limit, segregate, or classify His employees or applicants for employment In any way which would deprive Or tend to deprive Any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.” (Emphasis added.)Subdivision (j) of the same section sets forth that “Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter To grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group On account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.” (Emphasis added.)

9.  The unqualified proscription of racial quotas was pronounced in the following language: “If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.” (—- U.S. at p. ——, 98 S.Ct. at p. 2757.)

10.  City Charter, article VII, section 28, subdivision (b), provides that the city manager shall have power, and it shall be his duty “Except as otherwise provided in this Charter, to appoint, discipline or remove all heads or directors of departments, chief officials, and all subordinate officers and employees of the City, subject to the Civil Service provisions of this Charter. Neither the Council nor any of its committees or members shall dictate, either directly or indirectly, the appointment of any person to office or employment by the City Manager or in any manner interfere with the City Manager or prevent him from exercising his own judgment in the appointment of officers and employees in the administrative service. Except for the purpose of inquiry, the Council and its members shall deal with the administrative service solely through the City Manager, and neither the Council nor any member thereof shall give orders to any subordinates of the City Manager, either publicly or privately.” (Emphasis added.)

11.  42 United States Code, section 2000e-5, subdivision (k), provides that “In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” (Emphasis added.)

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.