requires identification of the interested potential applicants).
Second, there is no expiration date or other time limitation for the quota, except for the expression of the aspiration that it will be "temporary until the effects of past discrimination are overcome." Plaintiff's Exhibit 2, at 2. The lack of foundation for the assumption of post-1972 discrimination has already been discussed. Counsel for the defendants at oral argument in this matter further stated that due to the City's infrequent hiring, the policy could continue "throughout our lifetimes" without reaching its goal, which counsel suggested could be a 330 representation of women in the fire department. The absence of any official criterion defining success and therefore allowing termination of the quota system, or even a procedure for reevaluation of the need for the quota is a serious flaw under Richmond v. J. A. Croson Co.
Third, the quality referred to by the Supreme Court in Richmond v. J. A. Croson Co., as "narrow tailoring," and described in other contexts as consideration of less restrictive alternatives, is missing from the defendants' policy. Because the only discrimination identified by the City of Pittsburgh was its pre-1972 exclusion of women from the position of firefighter, a quota could possibly have been justified in the years immediately following 1972, tapering perhaps to a Johnson v. Transportation Agency-type "plus factor," and thence to selective advertising and recruitment of women candidates. The City, however, as it travels farther from its former exclusion of women from the position of firefighter, has become more and more extreme in its response. Methods which do not result in shifting the entire burden to individuals who, like Quirin, were completely innocent of the City's former policy, such as attempts to sponsor or recruit women military veterans or to provide additional coaching for women applicants, do not appear even to have been considered. Judging from the defendants' representative's explanation for their actions, this lack of exploration of alternatives appears to have occurred because the goal was achieving a fixed proportion of female firefighters and not simply overcoming the effects of discrimination.
In judging the appropriateness of the fit of the City's policy, it is also noteworthy that the quota was imposed not as part of a general policy of eradicating gender imbalance in City jobs, but only to increase the proportion of women in a City job with a high proportion of men. A policy which would be invalid when applied narrowly to one job description might be sustainable if imposed as a more global solution to the general problem of gender imbalance in public jobs.
The constitution and Title VII require that preferential treatment for a class defined by ethnicity or gender, even when justifiable because of a showing that the effects of past discrimination linger, must be tailored to minimize the burden to innocent members of the class not receiving the preference. See Newark Branch, NAACP v. Town of Harrison, J.J., 940 F.2d 792, 807 (3d Cir.1991), citing United States v. Paradise, 480 U.S. 149, 171, 94 L. Ed. 2d 203, 107 S. Ct. 1053 (1986). The City is free to employ a variety of means to attempt to attract more women to the position of firefighter.
It may not do so on the back of Terrence Quirin.
BY THE COURT,
D. Brooks Smith
United States District Judge
DATE: September 17, 1992