Firefighters v. City of Cleveland
478 U.S. 501 (1986)

Annotate this Case

U.S. Supreme Court

Firefighters v. City of Cleveland, 478 U.S. 501 (1986)

Local Number 93, International Association of Firefighters, AFL-CIO, C.L.C.

v . City of Cleveland

No. 84-1999

Argued February 25, 1986

Decided July 2, 1986

478 U.S. 501




The Vanguards, an organization of black and Hispanic firefighters employed by respondent city of Cleveland, filed a class action in Federal District Court charging the city and various city officials with discrimination on the basis of race and national origin in hiring, assigning, and promoting firefighters in violation of, inter alia, Title VII of the Civil Rights Act of 1964. Petitioner labor union, which represents a majority of the city's firefighters, was permitted to intervene as a party plaintiff. Over petitioner's objection, the court adopted a consent decree that provided for the use of race-conscious relief and other affirmative action in promoting firefighters. The Court of Appeals affirmed.

Held. Section 706(g) of Title VII does not preclude entry of a consent decree, such as was entered in this case, that may benefit individuals who were not the actual victims of the defendant's discriminatory practices; whether or not § 706(g) precludes a court from imposing certain forms of race-conscious relief after trial, it does not apply to relief awarded in a consent decree. Pp. 478 U. S. 515-530.

(a) Congress intended that voluntary compliance be the preferred means of achieving Title VII's objectives. Voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who are not actual victims of that discrimination. Steelworkers v. Weber,443 U. S. 193. Absent some contrary indication, there is no reason why such voluntary action is rendered impermissible by Title VII simply because it is incorporated into a consent decree. No such contrary indication is provided by § 706(g)'s last sentence, which precludes a district court from entering an order requiring the hiring or promotion of an individual who was refused employment or promotion for any reason other than discrimination. Whatever the extent of the limits Congress placed in § 706(g)'s last sentence on the power of federal courts to impose obligations on employers or unions to remedy violations of Title VII, § 706(g) by itself does not restrict the ability of employers or unions to enter into voluntary agreements providing race-conscious relief. Because the voluntary nature of a consent decree is its most fundamental

Page 478 U. S. 502

characteristic, it is apparent that consent decrees are not included among the "orders" referred to in § 706(g). The party's agreement, rather than the force of law upon which the complaint was originally based, creates the obligations embodied in a consent decree. Pp. 478 U. S. 515-524.

(b) A federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial. Inasmuch as the limits placed by § 706(g) on the remedial authority of a federal court -- whatever these may be -- are not implicated by voluntary agreements, there is no conflict with or violation of § 706(g) when a federal court enters a consent decree that provides such relief. Firefighters v. Stotts,467 U. S. 561, and Railway Employees v. Wright,364 U. S. 642, distinguished. Pp. 478 U. S. 524-528.

(c) The fact that the consent decree in this case was entered without petitioner's consent does not affect its validity. While an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. The consent decree here does not bind petitioner to do or not do anything. It imposes no legal duties or obligations on petitioner, and does not purport to resolve any other claims petitioner might have under the Fourteenth Amendment, § 703 of Title VII, or as a matter of contract. Whether it is too late to raise such claims, or, if not, whether the claims have any merit, are questions that must be presented in the first instance to the District Court, which has retained jurisdiction to hear such challenges. Pp. 478 U. S. 528-530.

753 F.2d 479, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 478 U. S. 530. WHITE, J., filed a dissenting opinion, post, p. 478 U. S. 531. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C J., joined, post, p. 478 U. S. 535.

Page 478 U. S. 504

JUSTICE BRENNAN delivered the opinion of the Court.

The question presented in this case is whether § 706(g) of Title VII of the Civil Rights Act of 1964, 78 Stat. 261, as amended, 42 U.S.C. § 2000e-5(g), precludes the entry of a consent decree which provides relief that may benefit individuals who were not the actual victims of the defendant's discriminatory practices.


On October 23, 1980, the Vanguards of Cleveland (Vanguards), an organization of black and Hispanic firefighters employed by the City of Cleveland, filed a complaint charging the City and various municipal officials (hereinafter referred to collectively as the City) with discrimination on the basis of race and national origin "in the hiring, assignment and promotion of firefighters within the City of Cleveland Fire Department." App. 6. The Vanguards sued on behalf of a class of blacks and Hispanics consisting of firefighters already employed by the City, applicants for employment, and "all blacks and Hispanics who in the future will apply for employment or will be employed as firemen by the Cleveland Fire Department." Id. at 8.

The Vanguards claimed that the City had violated the rights of the plaintiff class under the Thirteenth and Fourteenth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. Although the complaint alleged facts to establish discrimination in hiring and work assignments, the primary allegations charged that

Page 478 U. S. 505

black and Hispanic firefighters "have . . . been discriminated against by reason of their race and national origin in the awarding of promotions within the Fire Department." App. 11. [Footnote 1] The complaint averred that this discrimination was effectuated by a number of intentional practices by the City. The written examination used for making promotions was alleged to be discriminatory. The effects of this test were said to be reinforced by the use of seniority points and by the manipulation of retirement dates so that minorities would not be near the top of promotion lists when positions became available. In addition, the City assertedly limited minority advancement by deliberately refusing to administer a new promotional examination after 1975, thus cancelling out the effects of increased minority hiring that had resulted from certain litigation commenced in 1973.

As just noted, the Vanguards' lawsuit was not the first in which the City had to defend itself against charges of race discrimination in hiring and promotion in its civil services. In 1972, an organization of black police officers filed an action alleging that the Police Department discriminated against minorities in hiring and promotions. See Shield Club v. City of Cleveland, 370 F.Supp. 251 (ND Ohio 1972). The District Court found for the plaintiffs, and issued an order enjoining certain hiring and promotion practices and establishing minority

Page 478 U. S. 506

hiring goals. In 1977, these hiring goals were adjusted and promotion goals were established pursuant to a consent decree. Thereafter, litigation raising similar claims was commenced against the Fire Department and resulted in a judicial finding of unlawful discrimination and the entry of a consent decree imposing hiring quotas similar to those ordered in the Shield Club litigation. See Headen v. City of Cleveland, No. C73-330 (ND Ohio, Apr. 25, 1975). In 1977, after additional litigation, the Headen court approved a new plan governing hiring procedures in the Fire Department.

By the time the Vanguards filed their complaint, then, the City had already unsuccessfully contested many of the basic factual issues in other lawsuits. Naturally, this influenced the City's view of the Vanguards' case. As expressed by counsel for the City at oral argument in this Court:

"[W]hen this case was filed in 1980, the City of Cleveland had eight years at that point of litigating these types of cases, and eight years of having judges rule against the City of Cleveland."

"You don't have to beat us on the head. We finally learned what we had to do and what we had to try to do to comply with the law, and it was the intent of the city to comply with the law fully. . . ."

Tr. of Oral Arg. 41-42. Thus, rather than commence another round of futile litigation, the City entered into "serious settlement negotiations" with the Vanguards. See Letter dated December 24, 1980, from Edward R. Stege, Jr., and Mark I. Wallach to Hon. Thomas J. Lambros.

On April 27, 1981, Local Number 93 of the International Association of Firefighters, AFL-CIO, C.L.C. (Local 93 or Union), which represents a majority of Cleveland's firefighters, moved pursuant to Federal Rule of Civil Procedure 24(a)(2) to intervene as a party-plaintiff. The District Court granted the motion and ordered the Union to submit its complaint in intervention within 30 days.

Page 478 U. S. 507

Local 93 subsequently submitted a three-page document entitled "Complaint of Applicant for Intervention." Despite its title, this document did not allege any causes of action or assert any claims against either the Vanguards or the City. It expressed the view that

"[p]romotions based upon any criterion other than competence, such as a racial quota system, would deny those most capable from their promotions, and would deny the residents of the City of Cleveland from maintaining the best possible fire fighting force,"

and asserted that

"Local #93's interest is to maintain a well trained and properly staffed fire fighting force and [Local 93] contends that promotions should be made on the basis of demonstrated competency, properly measured by competitive examinations administered in accordance with the applicable provisions of Federal, State, and Local laws."

App. 27, 28. The "complaint" concluded with a prayer for relief in the form of an injunction requiring the City to award promotions on the basis of such examinations. Id. at 28.

In the meantime, negotiations between the Vanguards and the City continued, and a proposed consent decree was submitted to the District Court in November, 1981. This proposal established "interim procedures" to be implemented "as a two-step temporary remedy" for past discrimination in promotions. Id. at 33. The first step required that a fixed number of already planned promotions be reserved for minorities: specifically, 16 of 40 planned promotions to Lieutenant, 3 of 20 planned promotions to Captain, 2 of 10 planned promotions to Battalion Chief, and 1 of 3 planned promotions to Assistant Chief were to be made to minority firefighters. Id. at 33-34. The second step involved the establishment of "appropriate minority promotion goal[s]," id. at 34, for the ranks of Lieutenant, Captain, and Battalion Chief. The proposal also required the City to forgo using seniority points as a factor in making promotions. Id. at 32-33. The plan was to remain in effect for nine years, and could be extended

Page 478 U. S. 508

upon mutual application of the parties for an additional 6-year period. Id. at 36.

The District Court held a 2-day hearing at the beginning of January to consider the fairness of this proposed consent decree. Local 93 objected to the use of minority promotional goals and to the 9-year life of the decree. In addition, the Union protested the fact that it had not been included in the negotiations. This latter objection particularly troubled the District Judge. Indeed, although hearing evidence presented by the Vanguards and the City in support of the decree, the Judge stated that he was "appalled that these negotiations leading to this consent decree did not include the intervenors . . . ," and refused to pass on the decree under the circumstances. Tr. 134 (Jan. 7, 1982). Instead, he concluded:

"I am going to at this time to defer this proceeding until another day, and I am mandating the City and the [Vanguards] to engage the Fire Fighters in discussions, in dialogue. Let them know what is going on, hear their particular problems."

Id. at 151. At the same time, Judge Lambros explained that the Union would have to make its objections more specific to accomplish anything:

"I don't think the Fire Fighters are going to be able to win their position on the basis that, 'Well, Judge, you know, there's something inherently wrong about quotas. You know, it's not fair.' We need more than that."

Id. at 153.

A second hearing was held on April 27. Local 93 continued to oppose any form of affirmative action. Witnesses for all parties testified concerning the proposed consent decree. The testimony revealed that, while the consent decree dealt only with the 40 promotions to Lieutenant already planned by the City, the Fire Department was actually authorized to make up to 66 offers; similarly, the City was in a position to hire 32, rather than 20, Captains, and 14, rather than 10, Battalion Chiefs. After hearing this testimony, Judge Lambros proposed as an alternative to have the City make a high number of promotions over a relatively short period of time. The

Page 478 U. S. 509

Judge explained that, if the City were to hire 66 Lieutenants, rather than 40, it could "plug in a substantial number of black leadership that can start having some influence in the operation of this fire department" while still promoting the same nonminority officers who would have obtained promotions under the existing system. Tr. 147-148 (Apr. 27, 1982). Additional testimony revealed that this approach had led to the amicable resolution of similar litigation in Atlanta, Georgia. Judge Lambros persuaded the parties to consider revamping the consent decree along the lines of the Atlanta plan. The proceedings were therefore adjourned, and the matter was referred to a United States Magistrate.

Counsel for all three parties participated in 40 hours of intensive negotiations under the Magistrate's supervision, and agreed to a revised consent decree that incorporated a modified version of the Atlanta plan. See App. 79 (Report of Magistrate). However, submission of this proposal to the court was made contingent upon approval by the membership of Local 93. Despite the fact that the revised consent decree actually increased the number of supervisory positions available to nonminority firefighters, the Union members overwhelmingly rejected the proposal. [Footnote 2]

Page 478 U. S. 510

On January 11, 1983, the Vanguards and the City lodged a second amended consent decree with the court and moved for its approval. This proposal was "patterned very closely upon the revised decree negotiated under the supervision of [the] Magistrate . . . ," App. to Pet. for Cert. A31, and thus its central feature was the creation of many more promotional opportunities for firefighters of all races. Specifically, the decree required that the City immediately make 66 promotions to Lieutenant, 32 promotions to Captain, 16 promotions to Battalion Chief, and 4 promotions to Assistant Chief. These promotions were to be based on a promotional examination that had been administered during the litigation. The 66 initial promotions to Lieutenant were to be evenly split between minority and nonminority firefighters. However, since only 10 minorities had qualified for the 52 upper-level positions, the proposed decree provided that all 10 should be promoted. The decree further required promotional examinations to be administered in June, 1984, and December, 1985. Promotions from the lists produced by these examinations were to be made in accordance with specified promotional "goals" that were expressed in terms of percentages and were different for each rank. The list from the 1985 examination would remain in effect for two years, after which time the decree would expire. The life of the decree was thus shortened from nine years to four. In addition, except where necessary to implement specific requirements of the consent decree, the use of seniority points was restored as a factor in ranking candidates for promotion. Id. at A29-A38.

Local 93 was mentioned twice in the proposal. Paragraph 16 required the City to submit progress reports concerning compliance to both the Union and the Vanguards. Id. at A36. In paragraph 24, the court reserved exclusive jurisdiction with respect to applications or claims made by "any

Page 478 U. S. 511

party, including Intervenor." Id. at A38. The decree imposed no legal duties or obligations on Local 93.

On January 19, the City was ordered to notify the members of the plaintiff class of the terms of the proposed decree. In addition, persons who wished to object to the proposal were ordered to submit their objections in writing. Local 93 filed the following formal objection to the proposed consent decree:

"Local #93 has consistently and steadfastly maintained that there must be a more equitable, more fair, more just way to correct the problems caused by the [City]. Many alternatives to the hopefully soon to be unnecessary 'remedial' methods embodied in the law have been explored and some have been utilized."

"Local #93 reiterates it's [sic] absolute and total objection to the use of racial quotas, which must, by their very nature, cause serious racial polarization in the Fire Service. Since this problem is obviously the concern of the collective representative of all members of the fire service, Intervenors, Local #93. [sic] We respectfully urge this court not to implement the 'remedial' provisions of this Decree."

App. 98. Apart from thus expressing its opinion as to the wisdom and necessity of the proposed consent decree, the Union still failed to assert any legal claims against either the Vanguards or the City. [Footnote 3]

The District Court approved the consent decree on January 31, 1983. Judge Lambros found that

"[t]he documents, statistics, and testimony presented at the January and April, 1982, hearings reveal a historical pattern of racial discrimination in the promotions in the City of Cleveland Fire Department. "

Page 478 U. S. 512

App. to Brief in Opposition of City of Cleveland A3-A4. He then observed:

"While the concerns articulated by Local 93 may be valid, the use of a quota system for the relatively short period of four years is not unreasonable in light of the demonstrated history of racial discrimination in promotions in the City of Cleveland Fire Department. It is neither unreasonable nor unfair to require nonminority firefighters who, although they committed no wrong, benefited from the effects of the discrimination to bear some of the burden of the remedy. Furthermore, the amended proposal is more reasonable, and less burdensome, than the nine-year plan that had been proposed originally."

Id. at A5. The Judge therefore overruled the Union's objection and adopted the consent decree "as a fair, reasonable, and adequate resolution of the claims raised in this action." Ibid. The District Court retained exclusive jurisdiction for "all purposes of enforcement, modification, or amendment of th[e] Decree upon the application of any party. . . ." App. to Pet. for Cert. A38.

The Union appealed the overruling of its objections. A panel for the Court of Appeals for the Sixth Circuit affirmed, one judge dissenting. Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (1985). The court rejected the Union's claim that the use of race-conscious relief was "unreasonable," finding such relief justified by the statistical evidence presented to the District Court and the City's express admission that it had engaged in discrimination. The court also found that the consent decree was "fair and reasonable to nonminority firefighters," emphasizing the "relatively modest goals set forth in the plan," the fact that "the plan does not require the hiring of unqualified minority firefighters or the discharge of any nonminority firefighters," the fact that the plan "does not create an absolute bar to the advancement

Page 478 U. S. 513

of nonminority employees," and the short duration of the plan. Id. at 485.

After oral argument before the Court of Appeals, this Court decided Firefighters v. Stotts,467 U. S. 561 (1984). "Concerned with the potential impact of Stotts," the Court of Appeals ordered the parties to submit supplemental briefs, 753 F.2d at 485-486, but ultimately concluded that Stotts did not affect the outcome of the case. The court noted that the District Court in Stotts had issued an injunction requiring layoffs over the objection of the City, while, in this case, the City of Cleveland had agreed to the plan. The court reasoned that, even if Stotts holds that Title VII limits relief to those who have been actual victims of discrimination, "[t]he fact that this case involves a consent decree, and not an injunction, makes the legal basis of the Stotts decision inapplicable." 753 F.2d at 486. [Footnote 4]

Local 93 petitioned this Court for a writ of certiorari. The sole issue raised by the petition is whether the consent decree is an impermissible remedy under § 706(g) of Title VII. [Footnote 5]

Page 478 U. S. 514

Local 93 argues that the consent decree disregards the express prohibition of the last sentence of § 706(g) that

"[n]o order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title."

42 U.S.C. § 2000e-5(g) (emphasis added). According to Local 93, this sentence precludes a court from awarding relief under Title VII that may benefit individuals who were not the actual victims of the employer's discrimination. The Union argues further that the plain language of the provision that "[n]o order of the court" shall provide such relief extends this limitation to orders entered by consent, in addition to orders issued after litigation. Consequently, the Union concludes that a consent decree entered in Title VII litigation is invalid if -- like the consent decree approved in this case -- it utilizes racial preferences that may benefit individuals who are not themselves actual victims of an employer's discrimination. The Union is supported by the United States as amicus curiae. [Footnote 6]

Page 478 U. S. 515

We granted the petition in order to answer this important question of federal law. 474 U.S. 816 (1985). The Court holds today in Sheet Metal Workers v. EEOC, ante, p. 478 U. S. 421, that courts may, in appropriate cases, provide relief under Title VII that benefits individuals who were not the actual victims of a defendant's discriminatory practices. We need not decide whether this is one of those cases, however. For we hold that, whether or not § 706(g) precludes a court from imposing certain forms of race-conscious relief after trial, that provision does not apply to relief awarded in a consent decree. [Footnote 7] We therefore affirm the judgment of the Court of Appeals.


We have on numerous occasions recognized that Congress intended voluntary compliance to be the preferred means of achieving the objectives of Title VII. Alexander v. Gardner-Denver Co.,415 U. S. 36, 415 U. S. 44 (1974); Albemarle Paper Co. v. Moody,422 U. S. 405, 422 U. S. 417-418 (1975) (quoting United States v. N. L. Industries. Inc., 479 F.2d 354, 379 (CA8 1973)) (Title VII sanctions intended to cause employers "to self-examine and self-evaluate their employment practices, and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history'"). See also Teamsters v. United States,431 U. S. 324, 431 U. S. 364 (1977); Ford Motor Co. v. EEOC,458 U. S. 219, 458 U. S. 228 (1982); W. R. Grace & Co. v. Rubber Workers,461 U. S. 757, 461 U. S. 770-771 (1983). This view is shared by the Equal Employment Opportunity Commission (EEOC), which has promulgated guidelines setting forth its understanding that

"Congress strongly encouraged employers . . . to act on a voluntary basis to modify employment practices and systems

Page 478 U. S. 516

which constituted barriers to equal employment opportunity. . . ."

29 CFR § 1608.1(b) (1985). According to the EEOC:

"The principle of nondiscrimination in employment because of race, color, religion, sex, or national origin, and the principle that each person subject to Title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation, are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of Title VII. Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in Title VII."

§ 1608.1(c) (footnote omitted).

It is equally clear that the voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who were not actual victims of discrimination. This was the holding of Steelworkers v. Weber,443 U. S. 193 (1979). In Weber, an employer and a union agreed in collective bargaining to reserve for black employees 50% of the openings in an in-plant, craft-training program until the percentage of black craftworkers in the plant was commensurate with the percentage of blacks in the local labor force. After considering both the purposes of Title VII and its legislative history, we concluded that

"[i]t would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had 'been excluded from the American dream for so long' constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy."

Id. at 443 U. S. 204 (citation omitted). Accordingly, we held that Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action, although we left to another day the task of

Page 478 U. S. 517

defin[ing] in detail the line of demarcation between permissible and impermissible affirmative action plans." Id. at 443 U. S. 208.

Of course, Weber involved a purely private contractual agreement, rather than a consent decree. But, at least at first blush, there does not seem to be any reason to distinguish between voluntary action taken in a consent decree and voluntary action taken entirely outside the context of litigation. [Footnote 8] Indeed, in Carson v. American Brands, Inc.,450 U. S. 79, 450 U. S. 88, n. 14 (1981), we held that a District Court's order denying entry of a consent decree is appealable under 28 U.S.C. § 1292(a)(1) because such an order undermines Congress' "strong preference for encouraging voluntary settlement of employment discrimination claims" under Title VII. Moreover, the EEOC's guidelines concerning "Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964," 29 CFR pt. 1608 (1985), plainly contemplate the

Page 478 U. S. 518

use of consent decrees as an appropriate form of voluntary affirmative action. See, e.g., § 1608.8. [Footnote 9] True, these guidelines do not have the force of law, General Electric Co. v. Gilbert,429 U. S. 125, 429 U. S. 141 (1976), but still they "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" Id. at 429 U. S. 142 (quoting Skidmore v. Swift & Co.,323 U. S. 134, 323 U. S. 140 (1944)). Therefore, absent some contrary indication, there is no reason to think that voluntary, race-conscious affirmative action such as was held permissible in Weber is rendered impermissible by Title VII simply because it is incorporated into a consent decree.

Local 93 and the United States find a contrary indicator in § 706(g), which governs the courts' remedial power under Title VII. They contend that § 706(g) establishes an independent limitation on what courts -- as opposed to employers or unions -- can do, prohibiting any "order of the court" from providing relief that may benefit nonvictims. They argue that a consent decree should be treated as an "order" within the meaning of § 706(g) because it possesses the legal force and character of a judgment decreed after a trial. They rely for this conclusion on several characteristics of consent decrees: first, that a consent decree looks like and is entered as a judgment; second, that the court retains the power to modify a consent decree in certain circumstances over the objection of a signatory, see United States v. Swift & Co.,286 U. S. 106, 286 U. S. 114 (1932) (Swift II); third, that noncompliance with a consent decree is enforceable by citation for contempt of court, see United States v. City of Miami, 664 F.2d 435, 440, and n. 8 (CA5 1981) (opinion of Rubin, J.).

Page 478 U. S. 519

To be sure, consent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts. See United States v. ITT Continental Baking Co.,420 U. S. 223, 420 U. S. 235-237 (1975); United States v. Armour & Co.,402 U. S. 673 (1971). More accurately, then, as we have previously recognized, consent decrees "have attributes both of contracts and of judicial decrees," a dual character that has resulted in different treatment for different purposes. United States v. ITT Continental Baking Co., supra, at 420 U. S. 235-237, and n. 10. The question is not whether we can label a consent decree as a "contract" or a "judgment," for we can do both. The question is whether, given their hybrid nature, consent decrees implicate the concerns embodied in § 706(g) in such a way as to require treating them as "orders" within the meaning of that provision.

Because this Court's cases do not treat consent decrees as judicial decrees in all respects and for all purposes, we think that the language of § 706(g) does not so clearly include consent decrees as to preclude resort to the voluminous legislative history of Title VII. The issue is whether, when Congress used the phrase "[n]o order of the court shall require" in § 706(g), it unmistakably intended to refer to consent decrees. In addition to the fact that consent decrees have contractual as well as judicial features, the use of the verb "require" in § 706(g) suggests that it was the coercive aspect of a judicial decree that Congress had in mind. We turn therefore to the legislative history, since the language of § 706(g) does not clearly settle the matter.

The conclusion in Weber that "Congress chose not to forbid all voluntary race-conscious affirmative action" when it enacted Title VII was largely based upon the legislative history, which shows that Congress was particularly concerned to avoid undue federal interference with managerial discretion. Weber, 443 U.S. at 443 U. S. 205-207. As originally enacted,

Page 478 U. S. 520

Title VII regulated only private enterprises; the liberal Republicans and Southern Democrats whose support was crucial to obtaining passage of the bill expressed misgivings about the potential for Government intrusion into the managerial decisions of employers and unions beyond what was necessary to eradicate unlawful discrimination. Id. at 443 U. S. 206. Their votes were obtained only after they were given assurances that "management prerogatives, and union freedoms are to be left undisturbed to the greatest extent possible." H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). See also 110 Cong.Rec. 1518 (1964) (remarks of Rep. Celler); id. at 11471 (remarks of Sen. Javits); id. at 14314 (remarks of Sen. Miller); id. at 15893 (remarks of Rep. McCulloch). As one commentator points out, rather than seeking to outlaw voluntary affirmative action, the more conservative proponents of Title VII who held the balance of power in 1964 "were far more concerned to avoid the intrusion into business autonomy that a rigid color-blind standard would entail." Note, Preferential Relief Under Title VII, 65 Va.L.Rev. 729, 771, n. 224 (1979). See also Weber, supra, at 443 U. S. 207-208, n. 7 (quoting 110 Cong.Rec. 15893 (1964) (remarks of Rep. MacGregor)) (Congress was not legislating about "preferential treatment or quotas in employment'" because it believed that "`the problems raised by these controversial questions are more properly handled at a governmental level closer to the American people, and by communities and individuals themselves"').

The legislative history pertaining specifically to § 706(g) suggests that it was drafted with this concern in mind, and, in fact, that a principal purpose of the last sentence of § 706(g) was to protect managerial prerogatives of employers and unions. [Footnote 10] See H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1,

Page 478 U. S. 521

p. 11 (1963) (first version of § 706(g) preserving employer defense of "cause"); 110 Cong.Rec. 2567-2571 (1964) (amending this version to substitute for "any reason other than discrimination" in place of "cause"); id. at 2567 (remarks of Rep. Celler, the amendment's sponsor, that the amendment's purpose was "to specify cause"); id. at 6549 (remarks of Sen. Humphrey that § 706(g) makes clear "that employers may hire and fire, promote and refuse to promote for any reason, good or bad" except when such decisions violate the substantive provisions of Title VII). Thus, whatever the extent of the limits § 706(g) places on the power of the federal courts to compel employers and unions to take certain actions that the employers or unions oppose and would not otherwise take, § 706(g), by itself, does not restrict the ability of employers or unions to enter into voluntary agreements providing for race-conscious remedial action. The limits on such agreements must be found outside § 706(g). [Footnote 11]

From this, it is readily apparent that consent decrees are not included among the "orders" referred to in § 706(g), for the voluntary nature of a consent decree is its most fundamental

Page 478 U. S. 522

characteristic. See United States v. ITT Continental Baking Co., 420 U.S. at 420 U. S. 235-237; United States v. Armour & Co.,402 U. S. 673 (1971); Hughes v. United States,342 U. S. 353 (1952); United States v. Atlantic Refining Co.,360 U. S. 19 (1959); Ashley v. City of Jackson,464 U. S. 900, 902 (1983) (REHNQUIST, J., dissenting from denial of certiorari). As we observed in United States v. Armour & Co.:

"Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case, and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus, the decree itself cannot be said to have a purpose; rather, the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve."

402 U.S. at 402 U. S. 681-682 (emphasis in original) (footnote omitted). Indeed, it is the parties' agreement that serves as the source of the court's authority to enter any judgment at all. See United States v. Ward Baking Co.,376 U. S. 327 (1964) (cannot enter consent decree to which one party has not consented); Ashley v. City of Jackson, supra, at 902 (REHNQUIST, J., dissenting from denial of certiorari). More importantly, it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree. Consequently, whatever the limitations Congress placed in § 706(g) on the power of federal courts to impose obligations on employers or unions to remedy violations of

Page 478 U. S. 523

Title VII, these simply do not apply when the obligations are created by a consent decree.

The features of consent decrees designated by the Union and the United States do not require a contrary result. The fact that a consent decree looks like a judgment entered after a trial obviously does not implicate Congress' concern with limiting the power of federal courts unilaterally to require employers or unions to make certain kinds of employment decisions. The same is true of the court's conditional power to modify a consent decree; the mere existence of an unexercised power to modify the obligations contained in a consent decree does not alter the fact that those obligations were created by agreement of the parties, rather than imposed by the court. [Footnote 12] Finally, we reject the argument that a consent decree should be treated as an "order" within the meaning of § 706(g) because it can be enforced by a citation for contempt. There is no indication in the legislative history that the availability of judicial enforcement of an obligation, rather than the creation of the obligation itself, was the focus of congressional concern. In fact, judicial enforcement is available whether race-conscious relief is provided in a collective bargaining agreement (as in Weber) or in a consent decree; only the form of that enforcement is different. But the difference between contractual remedies and the contempt power is not significant in any relevant sense with respect to § 706(g). For the choice of an enforcement scheme -- whether to rely on contractual remedies or to have an agreement entered as a consent decree -- is itself made voluntarily by the parties. [Footnote 13] Thus, it does not implicate

Page 478 U. S. 524

Congress' concern that federal courts not impose unwanted obligations on employers and unions any more than the decision to institute race-conscious affirmative action in the first place; in both cases, the parties have themselves created obligations and surrendered claims in order to achieve a mutually satisfactory compromise.


Relying upon Firefighters v. Stotts,467 U. S. 561 (1984), and Railway Employees v. Wright,364 U. S. 642 (1961), Local 93 -- again joined by the United States -- contends that we have recognized as a general principle that a consent decree cannot provide greater relief than a court could have decreed after a trial. They urge that, even if § 706(g) does not directly invalidate the consent decree, that decree is nonetheless void because the District Court "would have been powerless to order [such an injunction] under Title VII, had the matter actually gone to trial." Brief for Petitioner 17.

Page 478 U. S. 525

We concluded above that voluntary adoption in a consent decree of race-conscious relief that may benefit nonvictims does not violate the congressional objectives of § 706(g). It is therefore hard to understand the basis for an independent judicial canon or "common law" of consent decrees that would give § 706(g) the effect of prohibiting such decrees anyway. To be sure, a federal court is more than "a recorder of contracts" from whom parties can purchase injunctions; it is "an organ of government constituted to make judicial decisions. . . ." 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice

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