10.2190/58VM-W3R0-YNF1-NUK4 58VMW3R0YNF1NUK4 2 Impermissible Collateral Attack Doctrine and Court-Approved Affirmative Action: New Perspectives After Wilks and the Civil Rights Act of 1991 7 18 20020509 20020509 20020509 20020509 58VMW3R0YNF1NUK4.pdf http://baywood.metapress.com/link.asp?target=contribution&id=58VMW3R0YNF1NUK4 1 Robert K. Robinson Ph.D. Geralyn McClure Franklin Ph.D. The University of Mississippi, Oxford Stephen F. Austin State University, Nacogdoches, Texas Contrary to reports, the United States Supreme Court's June 12, 1989 ruling in the case of Martin v. Wilks did not eliminate affirmative action plans. It did remove the "impermissible collateral attack doctrine" defense by employers as a means to avert reverse discrimination lawsuits, whereby federal courts would deny actions for reverse discrimination by employees who were not party to consent decrees. However, the Wilks decision affects only those parties not privy to the decree. If, for example, white employees or their representatives had participated in the consent agreement, they would still be subject to the doctrine. These points were incorporated into the Civil Rights Act of 1991. Essentially, Wilks requires employers to establish practical and viable affirmative action plans, while simultaneously precluding poorly planned, quick-fix programs that unnecessarily exclude whites. Employers should ensure that their current plans are based on justifiable utilization analysis and that the goals and timetables are reasonable in light of the Wilks decision.

Greenhouse, Court, 5-4, Affirms a Right to Reopen Bias Settlements, New York Times, June 13, 1989, at 1, col. 6.

109 S.Ct. 2180 (1989).

Fed.R.Civ.P. 19 (1988).

J. Ledvinka and V. Scarpello, Federal Regulation of Personnel and Human Resource Management, PWS-Kent, Boston, pp. 166-167 (1991).

29 U.S.C. §2.7 (1988).

41 C.F.R. §60-2.1 (1990).

Kaiser Aluminum and Chemical Company v. Weber, 443 U.S. 193 (1979).

42 U.S.C. §2000e (1988).

380 U.S. 145 (1965).

480 U.S. 149 (1987).

United States v. Jefferson County, 720 F.2d 1511, 1514 (11th Cir. 1983).

In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1494 (11th Cir. 1987).

D. Twomey, Equal Employment Opportunity Law, South-Western Publishing Co., Cincinnati, pp. 73-80 (1990).

Striff v. Mason, 849 F.2d 240, 245 (6th Cir. 1988); Thaggard v. City of Jackson, 687 F.2d 66, 68-69 (5th Cir. 1982), cert. den. sub nom. Ashley v. City of Jackson, 464 U.S. 900 (1983); Dennison v. City of Los Angeles Department of Water and Power, 658 F.2d 694, 696 (9th Cir. 1981); EEOC v. McCall Printing Corp., 633 F.2d 1232, 1237-1238 (6th Cir. 1980); United States v. Jefferson County, 720 F.2d 1511, 1518.

A "collateral attack" is an indirect attempt to overturn a judgment rendered in a judicial proceeding that is made in a proceeding other than the original action. The underlying policy reason against collateral attack is that once the parties to the action have a final judicial decree, neither party should be permitted to initiate new litigation on the same issue, The Guide to American Law, 3, p. 39 (1983).

Black and White Children of Pontiac School System v. School District of the City of Pontiac, 464 F.2d 1030 (6th Cir. 1972); Austin v. County of Dekalb, Department of Public Safety, 572 F.Supp. 481 (N.D. Ga. 1983).

Prate v. Freedman, 430 F.Supp. 1373, 1375 (W.D. N.Y. 1977), aff'd without opinion, 573 F.2d 1294 (2d Cir. 1977), cert. den. 436 U.S. 922 (1978). See also Marino v. Ortiz, 806 F.2d 1144, 1146 (2d Cir. 1986), aff'd by an equally divided court, 484 U.S. 301 (1988).

Thaggard v. City of Jackson, 687 F.2d at 68 citing Jackson v. Alabama Department of Public Safety, 657 F.2d 694 (5th Cir. 1981).

Birmingham Reverse Discrimination, 833 F.2d at 1498.

Firefighters Local No. 93 v. City of Cleveland, 478 U.S. 501 (1986); Dunn v. Carey, 808 F.2d 555, 559-560 (7th Cir. 1986); United States v. Jefferson County, 720 F.2d 1511, 1517-1518 (11th Cir. 1983).

Firefighters v. Cleveland, 478 U.S. at 529 (1986).

Ensley Branch of NAACP v. Seibels, 616 F.2d 812, 822, cert. den., 449 U.S. 1061 (1980).

See Birmingham Reverse Discrimination, 833 F.2d at 1494 n. 5.

United States v. Jefferson County, 720 F.2d at 1515.

The United States, as a signatory to the consent decrees, was named as the defendant in two of the earlier reverse discrimination suits. It then moved the lower court to intervene as a party plaintiff in the remaining cases. This motion was granted and the United States was even permitted to realign itself as a plaintiff in the two earlier suits in which it had been originally named as a defendant, Birmingham Reverse Discrimination, 883 F.2d 1492, 1496, n. 10.

The plaintiffs' case consisted of challenging the city's selection procedures by demonstrating that 1) the plaintiffs were demonstrably better qualified, 2) the job qualifications for making these comparisons were consistent with the language of the decrees, and 3) the city was aware of these criteria when it made the challenged promotions. Since the city did not use a job-related selection procedure, the court reasoned that the paragraph in question imposed no obligation on the city [23, p. 1497].

Fed.R.Civ.P. 19(a).

Wards Cove Packing v. Antonio, ___ U.S.___ 109 S.Ct. 2115 (1989); Price Waterhouse v. Hopkins, ___ U.S. ___, 109 S.Ct. 1775 (1989); Patterson v. McLean Credit Union, ___ U.S. ___ 109 S.Ct. 2363 (1989); Independent Federation of Flight Attendants v. Zipes, ___ U.S.___, 109 S.Ct. 2732 (1989); Martin v. Wilks, ___ U.S. ___, 109 S.Q. 2180 (1989); Lorance v. AT&T Technologies, ___ U.S. ___, 109 S.Ct. 2261 (1989).

Civil Rights Act of 1991, Pub. L. No. 102-166, §108 (to be codified at 42 U.S.C. §2000e-2).

480 U.S. 616 (1987).

Steelworkers of America v. Weber, 443 U.S. 193 (1979).

Johnson v. Transportation Agency, 480 U.S. at 638.

In a case involving firefighters in Gadsen, Alabama, a federal district court held that white firefighters were not precluded by the "impermissible collateral attack" doctrine from filing a reverse discrimination suit. However, that court also ruled that the challenged consent decree was justifiable and found for the defendant, Henry v. City of Gadsen, Ala., 715 F.Supp. 1065, 1068-1069 (N.D. Ala. 1989).